U.S.A. v. Albarran

• Decision Date: 30 November 2000
• Docket Number: No. 00-1719,00-1719
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Diego Albarran, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 972

233 F.3d 972 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Diego Albarran, Defendant-Appellant.

No. 00-1719

In the United States Court of Appeals For the Seventh Circuit

Argued November 3, 2000

Decided November 30, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 CR 371--James F. Holderman, Judge. [Copyrighted Material Omitted] Before Flaum, Chief Judge, and Easterbrook and Williams, Circuit Judges.

Flaum, Chief Judge.

Diego Albarran was convicted of conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine. Albarran now appeals his conviction, arguing: (1) there was insufficient evidence to sustain his conviction for conspiracy to possess with intent to distribute cocaine; (2) the district court erred when it denied his request for a downward departure based upon diminished capacity at the time of the offense and an extraordinary physical impairment; and (3) the district court erred in its calculation of the amount of drugs attributable to him for sentencing purposes. For the reasons stated herein, we affirm.

Background

On the afternoon of May 13, 1999 the Drug Enforcement Administration ("DEA") was involved in an undercover set-up operation. While monitoring a series of telephone calls between a confidential informant named Sean and Pedro Maya, the DEA learned that Sean had agreed to purchase "three or four, or maybe more" kilograms of cocaine for $23,000 dollars each, per kilo, from Maya. Sean wanted to see a sample of the cocaine and so Maya accommodated Sean's request by arranging a meeting between himself, his friend who would be supplying the drugs, and Sean. Early that same evening, Maya, his friend Raul Navarrette, Sean, and Agent Roger Ehler met at the Round Table Restaurant on Clark Street in Chicago to discuss the cocaine deal. At around 6:45 p.m., Navarrette, Maya, and Sean got into Agent Ehler's car. Maya and Navarrette directed Agent Ehler to 1555 West Hollywood Avenue, where he parked his car across the street from the Hollywood apartment building.

Finally, Diego Albarran appeared on the scene when he walked out of the Hollywood building carrying a black backpack and got into the back seat of the agent's car with Navarrette and Maya. Navarrette took the backpack from Albarran, pulled out a rectangular package wrapped in plastic, and cut open the package which contained a kilogram of cocaine. During this entire process, Albarran remained seated next to Navarrette, who had in his possession the open kilogram of cocaine. Discussions then ensued between the agent and Navarrette concerning the price and quality of the cocaine. The undercover agent during these negotiations gave the prearranged arrest signal and DEA agents proceeded to arrest Maya, Navarrette, and Albarran.

There is evidence that Albarran's role in the drug deal was not limited to delivering the drugs to Navarrette and observing the deal unfold. Rather, his telephone records reveal that he received ten phone calls on May 13 from Ignacio Estrada, who also played a role in setting up the drug deal. At approximately 3:30 p.m. in the afternoon, when Sean and Maya decided to set up the cocaine transaction, Maya talked to Navarrette, who immediately spoke to Estrada. Within a few minutes of Estrada being contacted, he began calling Albarran. This led to Estrada and Albarran exchanging phone calls throughout the afternoon and evening. The telephone records show that Albarran called Estrada at 6:13 p.m. and 6:23 p.m., which is during the period when the final arrangements for the drug transaction were occurring at the Round Table Restaurant. As the deal itself was progressing at the restaurant, DEA surveillance agents were tracking the activities of Agent Ehler. While doing so, one of the agents at 6:45 p.m. first realized that Albarran was walking down Clark Street, away from the Round Table Restaurant. He noticed that Albarran was carrying a cell phone and was within the vicinity of where the drug negotiations were taking place.

Albarran's arrest resulted in the search of Apartment 114 at 1555 West Hollywood Avenue. The agents learned that one of Albarran's keys fit the lock to that apartment, and shortly thereafter, a search of Apartment 114 was conducted. The apartment itself had an odor of marijuana. What was discovered in the apartment was more than marijuana. Agents uncovered in the apartment two kilograms of methamphetamine in various bags inside an open suitcase, five kilograms of cocaine scattered throughout the kitchen and alcove area, and a small amount of marijuana as well. The wholesale value of the drugs found in the apartment, according to an expert, was in excess of $150,000. During the search, the agents seized cutting and purifying tools used in the processing of drugs, sifters, strainers, and spoons covered with drug residue, two digital scales in plain view on the kitchen counter, and an assortment of packaging materials such as duct tape and plastic bags. In the middle of the apartment, agents also discovered a wooden press in a microwave oven sitting on a bed. The wooden press is used to form kilogram quantities of cocaine into bricks. Although the apartment had very few indications that it was being utilized as a living space, the agents did find a number of personal papers of Albarran's in the apartment, such as his passport, various personal records, a matchbook from the Round Table Restaurant, receipts dated in early May, a letter dated May 7, and a letter postmarked May 6 and addressed to Albarran at a different address. Albarran's fingerprints were detected on a small bag of cocaine in the apartment as well.

Albarran was charged with one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. sec. 846, and one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. sec. 841(a)(1). Albarran's first trial ended in a mistrial because of concerns relating to his health. A retrial followed and the jury found Albarran guilty as charged on both counts and the district court sentenced him to 210 months of imprisonment.

Discussion

A. Sufficiency of the Evidence

Albarran contends that the government failed to demonstrate that he knowingly agreed to distribute drugs, and furthermore, even if he was involved in some sort of conspiracy, the government never adequately proved that he knew of the illegal objective of the conspiracy. Sufficiency of evidence challenges are difficult to mount because the standard of review favors the government. We review a jury's determination for sufficiency of evidence in the light most favorable to the government and uphold a jury's decision if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). Albarran's sufficiency of evidence challenge is by no means doomed from the outset, but there is no question that he faces "'a heavy burden.'" United States v. Granados, 142 F.3d 1016, 1019 (7th Cir. 1998) (quoting United States v. Campbell, 985 F.2d 341, 344 (7th Cir. 1993)). We will therefore overturn a jury's verdict if the record contains no evidence, no matter how the evidence is weighed, from which the jury could have found guilt beyond a reasonable doubt. Id.

The government has the task of proving that Albarran was part of a conspiracy. To do so, the government must establish that a conspiracy existed and that Albarran knowingly agreed to join it. United States v. Pagan, 196 F.3d 884, 889 (7th Cir. 1999). Determining that a conspiracy exists is only the first step in the process, as it is incumbent upon the government to show that there is substantial evidence that the particular defendant in question "knew of the illegal objective of the conspiracy and agreed to participate in its achievement." United States v. Burrell, 963 F.2d 976, 987 (7th Cir. 1992). In building its case, the government need not rely exclusively upon direct evidence. The government can, if it so wishes, construct a conspiracy case solely upon circumstantial evidence. Pagan, 196 F.3d at 889.

Albarran contends that the government's case against him is based upon such weak circumstantial evidence that no jury could have reasonably concluded that he was part of a drug conspiracy. He contests the government's reliance upon phone calls placed between Estrada and himself because none of these phone calls were recorded. In addition, he argues that there were no phone calls between himself and Maya or Navarrette. Maya testified that prior to being arrested, he did not know Estrada or Albarran. There is no evidence, according to Albarran, that he personally had conversations with or knew of discussions among Estrada, Navarrette, or Maya. With respect to the period before the actual drug transaction, Albarran claims that although agents saw him talking on the phone and walking within the vicinity of the Round Table Restaurant, these facts fail to link him to the conspiracy. All the evidence that the government proffered to show that Albarran was involved in the planning stages of the drug transaction, like the phone calls he placed and received and his presence near the Round Table Restaurant, do not conclusively establish his direct participation in the drug conspiracy according to Albarran.

Albarran views his involvement in this entire situation as being the result of unlucky circumstances. Because Albarran had lost his job, he had left his apartment and was living on the streets. A man named "El Panzon" offered to allow him to live in an apartment at 1555 West Hollywood Avenue until the security deposit ran out. About four days before his arrest, "El Panzon" gave Albarran the keys to the apartment. Albarran claims that two to three days prior to his arrest he cleaned the apartment and he never saw in the...