U.S. v. Alcantar, 94-2867

• Decision Date: 07 May 1996
• Docket Number: No. 94-2867,94-2867
• Citation: 83 F.3d 185
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan ALCANTAR, also known as Canelo, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 185

83 F.3d 185

UNITED STATES of America, Plaintiff-Appellee, v. Juan ALCANTAR, also known as Canelo, Defendant-Appellant.

No. 94-2867.

United States Court of Appeals Seventh Circuit.

Argued Oct. 30, 1995.

Decided May 7, 1996.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 CR 833--Marvin E. Aspen, Chief Judge.

Barry Rand Elden, Chief of Appeals, Patrick Layng (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

Samuel J. Cahnman (argued), Chicago, IL, for Defendant-Appellant.

Before CUMMINGS, RIPPLE, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Juan Alcantar was convicted by a jury of conspiring to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) & 846, and of attempting to possess cocaine with the intent to distribute in violation of 21 U.S.C. § 846. The district court sentenced Alcantar to a prison term of 188 months. In this appeal, Alcantar argues that the evidence at trial was insufficient to support his conspiracy conviction because the government's case depended upon the inherently incredible testimony of a confidential informant. Alcantar therefore requests that we reverse that conviction and remand for resentencing on the surviving conviction for attempted possession. Yet we find the evidence sufficient to establish Alcantar's participation in a narcotics distribution conspiracy and therefore affirm.

I.

The government's case at trial relied heavily on the testimony of Mario Lopez, who in the midst of the events at issue here, agreed to cooperate with the government by acting as a confidential informant. In October 1992, Lopez was sharing a Chicago apartment located at 2654 South Drake Street with Jose "Tito" Santamaria when Tito's cousin Esteban Zapata moved in. Zapata was a drug dealer, and he soon recruited Lopez to work on his behalf. Zapata would obtain cocaine from two sources--his cousin Marco Zapata in Dallas, Texas, and Marco Rodriguez in Mexico. These suppliers would ship cocaine to a source in Elgin, Illinois, where it would be picked up and brought to Chicago by one of Zapata's subordinates. The cocaine would then be distributed through Zapata's extensive distribution network. Alcantar and his co-defendant Ismael Cano were alleged to be two of Zapata's Chicago distributors.

Lopez testified that he picked up his first shipment of cocaine for Zapata in Elgin in late December 1992. That was a fifty kilogram shipment, and Zapata stored the cocaine in a garage owned by Tito's brother. Zapata initially had difficulty getting rid of this cocaine at the price he was seeking because cocaine prices in Chicago were somewhat depressed at the time. Chicago prices soon rose, however, and Zapata was then able to distribute the entire shipment.

With this change in fortunes, Zapata began receiving cocaine shipments approximately once every two weeks. Zapata used Lopez to pick up the shipments in Elgin, usually from a man Lopez knew only as Cuco. Lopez would travel to a designated parking lot off Route 31, park next to Cuco, pop open his trunk, and wait as Cuco placed a bag of cocaine inside. Lopez generally would not pay for the cocaine upon receipt, but only after the shipment had been distributed. At that point, Lopez would travel back to Elgin, pay Cuco, and learn when the next cocaine shipment would arrive.

After receiving a shipment, Lopez would take the cocaine to his girlfriend's residence on South Hoyne Street, inspect it, and then call Zapata. He would learn from Zapata how much cocaine should be delivered to each of Zapata's eight or nine distributors. Tito and Lopez would then make the deliveries.

Zapata initially told Lopez that Cano's cocaine should be delivered to Alcantar, who is Cano's brother-in-law. Lopez (and sometimes Tito) would drive to an alley behind South Kolin Street where Alcantar would meet them. There, they would transfer a beer case packed with cocaine to Alcantar through an open window. Alcantar did not pay for the cocaine at this time. Instead, several days later, Cano would deliver a portion of the amount owed Zapata to the South Drake Street apartment, while Alcantar would deliver the remainder to Lopez in the South Kolin Street alley. On occasion, Cano would instruct Zapata to deliver a portion of his cocaine to a man named "Jessie," and Lopez and Tito would then deliver half of Cano's cocaine to Alcantar and half to Jessie.

Zapata's cocaine operation functioned smoothly between January and March 1993, with Zapata receiving and successfully distributing approximately ten shipments. In late March, however, a dispute developed between Zapata and his suppliers that interrupted the regular shipments of cocaine. Zapata's suppliers maintained that approximately $300,000 was owed to them and that the money was needed to pay their source in Mexico. Zapata insisted that he had paid the missing money to Cuco, but the suppliers refused to send additional shipments until the dispute was resolved.

On April 22, 1993, a court-authorized wiretap was placed on the telephone at the South Drake Street apartment. Between April 22 and July 12, 1993, federal agents monitored approximately 2,800 calls, including many relating to the missing $300,000 and to Zapata's efforts to obtain further cocaine shipments. On April 24, for example, Alcantar attempted to reach Zapata at the South Drake Street apartment but spoke instead to Rolando Lopez. Alcantar asked Rolando if there was going to be any more work, but Rolando said he did not yet know.

The dispute between Zapata and his suppliers was never adequately resolved, and Zapata was therefore unable to obtain further cocaine shipments from his cousin or Rodriguez. On July 12, 1993, Zapata, Tito, and Rolando Lopez were murdered in the South Drake Street apartment. By that time, Mario Lopez had moved out of the apartment and was living with his girlfriend on South Hoyne Street. Lopez had visited the South Drake Street apartment on the afternoon of July 12, but he had left at approximately 7:00 p.m. Lopez learned of the murders when Chicago police officers came to his girlfriend's apartment later that evening. Over the next several days, local police and federal drug enforcement agents questioned Lopez about his murdered friends. Lopez said nothing about the money dispute until the agents confronted him with their knowledge of Zapata's drug trafficking operations. Lopez then filled in many of the details about Zapata's operations and also described the dispute over the missing $300,000. Lopez eventually agreed to cooperate with the government and to contact certain of Zapata's former distributors.

On September 22, 1993, Lopez met Alcantar at a local tavern. Lopez was wearing a wire, and a transcript of their conversation was provided to the jury at Alcantar's trial. Lopez told Alcantar that he was back in the drug business, and he asked whether Alcantar would be interested in working with him. Alcantar said he would have to check with Cano, who at the time was vacationing in Mexico. In the course of their conversation, Lopez and Alcantar reminisced about the cocaine Alcantar and Cano had moved for Zapata in the past. Alcantar estimated that he and Cano had distributed between ten and fifteen kilograms of cocaine a week.

After this meeting, there was a series of recorded conversations between Lopez and Cano relating to Lopez' plan to begin distributing cocaine himself and eventually to a planned delivery to Cano and Alcantar. In the early conversations, Lopez told Cano that he needed a trustworthy individual like Alcantar to work as his driver, as Lopez had done for Zapata. Cano indicated that he could not spare Alcantar, however, as Alcantar was vital to Cano's own operation. Lopez and Cano also reminisced about their work with Zapata, with Cano revealing the extent of his own involvement as well as that of Alcantar. Indeed, Cano told Lopez that he had once loaned Alcantar to Zapata when Zapata had been in need of an individual to drive cocaine to Chicago from Miami. Eventually, however, the conversations focused on a proposal by Lopez to deliver cocaine to Cano and Alcantar for distribution. Lopez and Cano agreed that on November 17, 1993, Lopez would deliver approximately ten kilograms of cocaine to an apartment located at 3114 Millard, where Alcantar would be waiting. Lopez indicated that he would be driving a van, and he confirmed for Cano that Alcantar would recognize the van.

Lopez arrived at the alley behind 3114 Millard at approximately 1:20 p.m. on November 17, and Alcantar was waiting for him there. Alcantar got into the van, and Lopez quickly gave him a bag of sham cocaine. Lopez instructed Alcantar to tell Cano and Jessie that there were "ten" in the bag. Lopez then told Alcantar that he needed the bag back once they had the money. Alcantar agreed, then left the van and began walking with the bag toward the building at 3114 Millard. Law enforcement agents moved in and arrested him. Alcantar was subsequently charged with attempting to possess cocaine on November 17, 1993 with the intent to distribute it, and with conspiring to possess and to distribute cocaine between December 1992 and November 17, 1993.

II.

Alcantar does not challenge his conviction for attempted possession of cocaine on November 17, 1993, presumably because he had with him at the time of his arrest a bag that he believed to contain ten kilograms of cocaine. The jury's verdict on that charge was amply supported by Lopez' testimony, the tape-recorded conversations between Lopez and Cano leading up to the November 17 delivery, the testimony of agents who conducted surveillance during that delivery, and the recording of Alcantar's conversation with Lopez as the bag changed hands inside the van. Conceding the sufficiency of the evidence on the attempted possession conviction, then, Alcantar...