U.S. v. Ruiz, 90-1787

• Citation: 932 F.2d 1174
• Decision Date: 11 September 1991
• Docket Number: No. 90-1787,90-1787
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Angel RUIZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1174

932 F.2d 1174

UNITED STATES of America, Plaintiff-Appellee, v. Angel RUIZ, Defendant-Appellant.

No. 90-1787.

United States Court of Appeals Seventh Circuit.

Argued Feb. 21, 1991.

Decided May 17, 1991.

Opinion Corrected, Motion to recall Mandate Denied Sept. 11, 1991.

Ted S. Helwig, Asst. U.S. Atty., Susan E. Cox, Office of the U.S. Atty. and Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Robert A. Korenkiewicz, Chicago, Ill., for defendant-appellant.

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

BAUER, Chief Judge.

A jury concluded that Angel Ruiz was, in fact, no angel: it found him guilty of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846 and one count of distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). The district court entered judgment on this verdict and sentenced Ruiz under the United States Sentencing Guidelines ("Guidelines") to a term of 160 months. In this appeal, Ruiz challenges both his conviction and his sentence. We affirm the former but, because the court committed error in the application of the Guidelines, we vacate Ruiz's sentence and remand the case for resentencing.

I

The path that led authorities to Angel Ruiz began with Roberto Diaz. Diaz was a street-level drug dealer who, in the fall of 1987, began selling cocaine to "Francisco" Guerra. That choice of customer would be Diaz's undoing, as Frank Guerra was an undercover special agent with the Illinois State Police. Diaz's sales to Agent Guerra started small: an eighth of an ounce here, an ounce and a half there. After Diaz and Agent Guerra became better acquainted through these small deals, they began discussing larger transactions. Agent Guerra also started bringing his brother Fred along. Fred Guerra, as it turns out, was an undercover narcotics deputy employed by the Cook County Sheriff's Department.

When Agent Guerra expressed interest in larger transactions, Diaz assured him that he could get his hands on kilogram quantities of cocaine. Diaz quoted Agent Guerra a tentative price of $29,000 per kilo, contingent upon the approval of his source. He later told Agent Guerra that he could get the cocaine for $27,000 per kilo, with a discount for multi-kilogram purchases. Agent Guerra told Diaz that he was interested in buying not one but two kilograms. Diaz said no problem. Negotiations between Diaz and Agent Guerra continued, with the two eventually agreeing on a price of $52,000 for the two kilos.

According to Diaz's testimony, his source for cocaine was Jose Sandoval. Sandoval testified that his source, in turn, was Angel Ruiz. ¹ Like much else in the American economy, the Ruiz-to-Sandoval-to-Diaz operation ran on credit. Ruiz would give the cocaine to Sandoval on consignment, Sandoval agreeing to pay Ruiz, say, X dollars per ounce, as soon as he sold the cocaine to one of his customers. Sandoval would in turn consign the cocaine to Diaz for an agreed price of X + 50 dollars or X + 100 dollars per ounce, to be paid when Diaz sold the cocaine to one of his customers. Diaz, of course, would then try to sell the cocaine for more than he owed Sandoval so that he, too, could make a profit. The two-kilogram deal was to work in the same fashion: Diaz was to pay Sandoval $40,000 ($20,000 per kilo) after he collected the $52,000 from the Guerras. (The record does not reveal how much Sandoval would skim off of the $40,000 before paying Ruiz.) Diaz thus would make $12,000 in gross profit, out of which he would pay Sandoval an extra $2,000 for his help at the delivery, leaving Diaz a net profit of $10,000.

The two-kilogram deal, which was to be the last drug deal for this particular distribution outfit, went down as follows. On December 17, 1987, Diaz phoned Agent Guerra and told him that "his people were ready" to make the two-kilogram transaction. Transcript of Trial Proceedings ("Trial Tr."), Vol. II, p. 57. They arranged to meet that evening at the parking lot of a Zayre's department store in Lyons, Illinois, to make the exchange. Early that evening, Diaz met Sandoval at a bar and told him the buyer was ready. Sandoval stepped out and called Ruiz's house to arrange the pick up of the drugs, but no one was home. Sandoval then decided to take Diaz to a location in Cicero, Illinois, where Sandoval knew he could get the cocaine from Ruiz. (In a transaction of this size, Sandoval planned to accompany Diaz every step of the way.)

With Sandoval in the passenger seat giving directions, Diaz drove to Cicero and parked in an alley. While Diaz waited in the car, Sandoval met in the alley with Ruiz and another man named Antonio Marquez. Diaz as yet had not met Ruiz or Marquez, and would learn their names only after they all had been arrested. After chatting briefly in the alley, Ruiz, Marquez, and Sandoval came over to Diaz's car. Ruiz told Diaz that he had only one kilogram of cocaine. Diaz was upset, and told Ruiz that he needed--and had asked Sandoval for--two kilograms. Ruiz then responded, according to Diaz's testimony: "It doesn't matter. I'll get you the other kilo. And, if you want, even ten more I can get." Trial Tr., Vol. III, p. 162. ² Ruiz and Marquez then asked where the transaction with Diaz's customer was to occur, and Diaz told them the Zayre parking lot. Ruiz rejected that site, and they decided instead that the transaction should occur at Diaz's apartment. Diaz said he would have to go back and tell his customer about the change in location. Ruiz assented, and told Diaz to take Marquez along and show him where the apartment was.

Diaz and Sandoval drove off, with Marquez following in his own car. The caravan stopped by Diaz's house, where Marquez peeled off to go back and pick up Ruiz. Diaz and Sandoval proceeded to the Zayre parking lot to meet the Guerras. Diaz introduced Sandoval to the Guerras and informed Agent Guerra that the exchange had to take place at his apartment. But Agent Guerra said no sale. He flashed Diaz and Sandoval a peek at the bag containing the $52,000 and told them that the exchange would take place in the parking lot or not at all. Sufficiently persuaded, Diaz and Sandoval agreed to fetch the cocaine and return to the parking lot.

Back at Diaz's apartment, Diaz and Sandoval delivered the news to Ruiz and Marquez, who were waiting out front in Marquez's car. Sandoval and Diaz walked over to the car, in which Ruiz occupied the passenger seat, and the four conferred briefly. When told of Diaz's customers' insistence on the Zayre parking lot, Ruiz assented to that site. Marquez reached below the seat of the car and pulled out a one-kilogram package of cocaine, which he handed out the driver-side window to Diaz, who stuffed the package under his sweater. Ruiz handed the other kilo out the passenger-side window to Sandoval, who stuffed it under his jacket. Diaz and Sandoval then walked hurriedly back to Diaz's car. An undercover DEA agent who was positioned at that time some distance behind Diaz's car testified at trial that, when Sandoval hurried back to Diaz's car, he walked "slightly hunched over, with his hands clasped to the front of his body, almost like a fullback would carry the ball in a football game...." Trial Tr., Vol. V, p. 396.

With the kilograms in-hand, Diaz and Sandoval drove directly to the Zayre parking lot. Marquez and Ruiz followed closely in Marquez's car. Diaz pulled into the parking lot next to the Guerras' car, and Marquez and Ruiz positioned their car about 50 feet away. Diaz and Sandoval got out of their car and walked over to the Guerras' car, where they delivered the two kilograms of cocaine to the Guerras. Deputy Guerra then gave the arrest signal and the dozen or so agents who had been staking out the scene closed in and pinched all four suspects: Diaz, Sandoval, Marquez, and Ruiz.

The following day, December 18, 1987, the government filed a criminal complaint charging all four with distribution of two kilograms of cocaine in violation of 21 U.S.C. Sec. 841(a). About one month later, however, on the government's oral motion, the court dismissed the charge against Ruiz and released him from custody. The remaining three defendants subsequently were indicted for both conspiracy to distribute cocaine and distribution of cocaine, to which charges they each pleaded guilty. Diaz and Sandoval, in return for their pleas and their promises to testify against Ruiz, received sentences of two and one-half years and three and one-half years, respectively--substantially lower than the sentences they would have received under the Guidelines.

Diaz and Sandoval then were brought before the grand jury, which returned a two-count indictment against Ruiz, charging him with conspiracy under 21 U.S.C. Sec. 846 and distribution under 21 U.S.C. Sec. 841(a). In December 1989, the case was tried to a jury, which found Ruiz guilty on both counts. The district court subsequently denied Ruiz's post-trial motions and held a sentencing hearing. Because the conduct that constitutes the core of this offense occurred after November 1, 1987, the court applied the Guidelines, under which the court sentenced Ruiz to 160 months on each count to run concurrently. Ruiz filed a timely appeal, raising various challenges to both his conviction and his sentence.

II

A. Sufficiency of the Evidence

First, and most predictably, Ruiz argues that the evidence presented by the government was insufficient to support his conviction on either count. This is so, argues Ruiz, because the convictions are based entirely on the uncorroborated testimony of Diaz and Sandoval, two drug-dealing - felons - turned - government - informants who simply cannot be believed. As we have too-often reminded counsel, "this argument is wasted on an appellate court." United States v. Molinaro, 877 F.2d 1341, 1347 (7th Cir.1989). Ruiz thoroughly attacked Diaz's and...