U.S. v. Duarte

Decision Date27 March 1992
Docket NumberNo. 91-1203,91-1203
Citation950 F.2d 1255
Parties34 Fed. R. Evid. Serv. 1140 UNITED STATES of America, Plaintiff-Appellee, v. Bienvenido DUARTE, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Stephen J. Liccione, Asst. U.S. Atty. (argued), Milwaukee, Wis., for plaintiff-appellee.

Thomas L. Shriner, Jr., Jeffrey N. Costakos (argued), Foley & Lardner, Milwaukee, Wis., for defendant-appellant.

Before WOOD, Jr., FLAUM and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

A jury convicted Bienvenido Duarte of one count of conspiracy to distribute over one kilogram of cocaine, and one count of possession with the intent to distribute over one kilogram of cocaine. The district court, pursuant to the Sentencing Guidelines, sentenced him to two concurrent 180 month terms of imprisonment. Here, Duarte appeals both his conviction and sentence. We affirm his conviction, but vacate his sentence and remand for resentencing.

I.

Duarte challenges his conviction on sufficiency of the evidence grounds. He concedes that a conspiracy to distribute cocaine existed, but contends that the government failed to produce sufficient evidence linking him to the conspiracy. 1 We review the record, necessarily in some degree of detail, before considering the merits of this claim.

A.

On June 22, 1990, a confidential informant notified the Milwaukee police department that several individuals from New York, including Duarte, had arrived in Milwaukee with approximately one kilogram of cocaine. The informant advised the police that these individuals were staying in Room 234 of a particular Howard Johnson's motel.

Detectives Thomas Gorecki and Alan Wilke proceeded to the motel where they found, parked outside Room 234, a grey 1983 Chevrolet with New York license plates. A call to New York authorities established that the plates were not registered to this car, but rather to a yellow 1981 Chevrolet. The detectives then decided to set up surveillance and investigate further. They learned from a Howard Johnson's employee that Room 234 was registered to a Maria Gonzales of 1516 Wright Street in Milwaukee. This information also failed to check out, as the address corresponded to a vacant, boarded up home.

About an hour after Gorecki and Wilke arrived, a man later identified as Modesto Arroyo emerged from the Howard Johnson's, got into the Chevrolet, and drove in an "erratic" fashion--according to the detectives, who followed him--to a nearby Exel Inn. Arroyo stayed at the Exel for about two hours, after which he drove, again in an erratic fashion, back to the Howard Johnson's. The detectives testified that Arroyo made four such trips between the motels. Once, upon returning to the Howard Johnson's, Arroyo threw something at the glass door or window of Room 234.

Milwaukee police aborted what turned out to be Arroyo's last trip of the day when they stopped him as he was driving away from the Howard Johnson's. The police found a key to Room 207 of the Exel in the car. Gorecki and Wilke, accompanied by members of the tactical enforcement unit, proceeded to the Exel and opened the door to Room 207. From the hallway the officers saw a large white chunk on a sheet of plastic, a chunk they surmised (correctly, as laboratory tests subsequently determined) was cocaine. After securing the room, 2 the detectives, along with five uniformed officers, returned to the Howard Johnson's, where they knocked on the door of Room 234. A man who identified himself as Antonio de la Cruz opened the door and admitted the officers. Duarte was also in the room at the time.

The detectives asked Duarte for permission to search the room, and Duarte consented. The police recovered several items, including a number of airline ticket receipts, a boarding pass in Duarte's name for a flight from Boston to Milwaukee in March, a receipt for jewelry bought in Milwaukee in April, five $100 bills and some other cash. More important, they seized a telephone beeper from Duarte, and found in his wallet three pieces of paper with various names, numerical entries, and words in Spanish. Duarte also produced a Massachusetts driver's license which the State of Massachusetts claims never to have issued.

Upon questioning at the motel, Duarte explained that he managed Latino music acts and was in town to book gigs for his clients. He maintained that he had been in Milwaukee for several days, but was able to name only one nightclub in the Milwaukee area, and could not identify any of his clients. In addition, Duarte claimed to have made only a few phone calls during his stay. His motel bill, however, demonstrates that over 60 local calls, and approximately 100 calls overall, were placed from his room.

The police then obtained a search warrant for Room 207 of the Exel. The search yielded 1.177 kilograms of cocaine and some cocaine dealing paraphernalia, including a roll of wax paper, a box of plastic storage bags, a strainer, and a hand-held gram scale. Duarte was arrested and charged with conspiracy to distribute cocaine and possession with the intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2.

At trial, several witnesses for the government--including Gorecki and Wilke, other law enforcement officials involved with the investigation, and an employee of the Howard Johnson's--testified as to the preceding facts. The government also called Special Agent William C. Hehr of the Drug Enforcement Agency, who, while not involved with the investigation, testified as an expert on the operation of drug rings and, more important, analyzed the three slips of paper found in Duarte's wallet. (A handwriting expert testified that the handwriting on the papers was Duarte's.) Hehr testified that, in his opinion, the three slips of paper were "drug notes" that recorded various cocaine transactions in a crude, but disguised manner. While the drug notes did not refer to drugs per se, they listed names next to numbers in a ledger-like manner, and contained words such as "minus," "two parts," "makes," "credit," and "debt." In addition, some numbers were consistent with the price of cocaine during the time the conspiracy was alleged to have operated. 3 Hehr stated that the notes demonstrated that Duarte controlled $117,000 worth of cocaine.

At the close of the government's case, the defense rested without calling any witnesses. The jury convicted Duarte on both the conspiracy and the possession counts.

B.

To procure a valid conspiracy conviction, the government must demonstrate that (1) a conspiracy to distribute cocaine existed, and (2) the defendant knew of the conspiracy and agreed to "join and associate himself with its criminal design and purpose." United States v. Auerbach, 913 F.2d 407, 414-15 (7th Cir.1990); see also United States v. Ruiz, 932 F.2d 1174, 1179 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 151, 116 L.Ed.2d 116 (1991); United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir.1991). As noted above, Duarte concedes the first element, and, moreover, does not claim that he was ignorant of Arroyo's drug-related activities. His sole contention is that the government did not proffer sufficient evidence to prove that he joined the conspiracy.

Defendants advancing sufficiency of the evidence claims face a heavy burden; we deny such claims if, "after viewing the evidence in the light most favorable to the government, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)). When, as here, a defendant challenges the sufficiency of the evidence linking him to an existing conspiracy, we will sustain a verdict of guilt if there is "substantial evidence" in the record of the defendant's agreement to participate, and actual participation, in the conspiracy. Ruiz, 932 F.2d at 1179; Auerbach, 913 F.2d at 414.

At the outset, we emphasize that a defendant's "mere knowledge of, approval of, association with, or presence at a conspiracy" is not sufficient to establish participation therein. United States v. Durrive, 902 F.2d 1221, 1225 (7th Cir.1990). Agreement is the essence of conspiracy; nobody may be convicted of the offense unless the government proves that he agreed to join or participate in a criminal enterprise. Townsend, 924 F.2d at 1390. It is simply not enough to prove that the defendant hung out with criminals, knowingly witnessed the execution of a conspiratorial plot, or even wished the conspirators success. See United States v. Atterson, 926 F.2d 649, 655-56 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2909, 115 L.Ed.2d 1072 (1991).

The government's case against Duarte skates very close to this line. There is no direct evidence in the record that Duarte ever agreed to do anything in furtherance of Arroyo's criminal activities. None of Duarte's alleged co-conspirators--including Arroyo, the only participant affirmatively linked to the cocaine recovered at the Exel--testified at trial that Duarte participated in the conspiracy. No witnesses testified that Duarte bought cocaine from or sold cocaine to them, or that they saw Duarte deal cocaine. The government did not record any of the phone calls originating from Room 234 of the Howard Johnson's, phone calls that might have demonstrated Duarte's participation in the cocaine dealing enterprise. The police did not find any cocaine or related paraphernalia (e.g., scales, plastic baggies) at the Howard Johnson's. No evidence suggests that Duarte was ever at the Exel, or that he called the Exel from his room at the Howard Johnson's.

This lack of direct evidence, while hardly ideal, does not compel reversal of Duarte's conviction. A defendant's agreement to join a conspiracy...

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