U.S. v. Alvarez

• Decision Date: 18 November 1987
• Docket Number: 87-1576,Nos. 87-1575,s. 87-1575
• Citation: 833 F.2d 724
• Parties: 24 Fed. R. Evid. Serv. 29 UNITED STATES of America, Plaintiff-Appellee, v. Pedro ALVAREZ and Jose H. Gutierrez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 724

833 F.2d 724

24 Fed. R. Evid. Serv. 29

UNITED STATES of America, Plaintiff-Appellee, v. Pedro ALVAREZ and Jose H. Gutierrez, Defendants-Appellants.

Nos. 87-1575, 87-1576.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 24, 1987.

Decided Nov. 18, 1987.

A. Luis Ortiz, Indianapolis, Ind., for defendants-appellants.

John J. Thar, U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

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

BAUER, Chief Judge.

This is an appeal by two codefendants from their convictions for conspiracy to distribute cocaine and distribution of cocaine. After considering the several challenges of these two defendants, we affirm.

I. Facts

Defendants Pedro Alvarez and Jose Gutierrez were arrested on July 10, 1986, along with three other codefendants, Felix Valdivias, Ricardo Rivera, and Marion Rivera. On August 6, 1986, an indictment was returned charging Alvarez and Gutierrez with conspiring with Valdivias, the Riveras, and others to distribute cocaine in violation of 21 U.S.C. Sec. 846. The indictment also charged Alvarez with distributing one ounce of cocaine on April 30 and June 20, 1986, and both Alvarez and Gutierrez with distributing five ounces of cocaine on July 10, 1986, in violation of 21 U.S.C. Sec. 841(a)(1). On January 5, 1987, a hearing was held on Gutierrez's motion to suppress evidence found during a warrantless search of his van and the motion was denied. Trial began on January 6, 1987, and ended on January 15, 1987; the jury convicted Alvarez and Gutierrez as charged.

A.

The convictions of Alvarez and Gutierrez resulted from a five-month undercover operation conducted by the FBI. The operation began on March 26, 1986, when FBI Special Agent Johnnie Jackson arranged by telephone, through a confidential informant, to purchase one-eighth ounce of cocaine from Ricardo Rivera. Later that same day, Jackson purchased one-eighth ounce of cocaine from Ricardo and Marion Rivera for $300.00 in official government funds and the parties discussed the possibility of making future purchases. Several other purchases were in fact made by Jackson from the Riveras and others.

On April 30, 1986, for example, Special Agent Jackson again contacted Rivera by phone and arranged to purchase one ounce of cocaine for $1,800.00. As directed by Ricardo Rivera, Jackson and the informant drove to Rivera's residence where they saw Pedro Alvarez and Richard Gray. There Jackson met with Rivera and Valdivias, who stated the price for an ounce of cocaine was $1,800.00 and left to get the cocaine. While Valdivias was gone, Rivera asked Jackson to go into business with him and told Jackson that Alvarez and Valdivias were in the cocaine business with Rivera, each of them having travelled to Miami to bring back cocaine. Rivera also mentioned that Gray, whom he called "Spoonie", was not a partner in the business, but worked as a translator in cocaine transactions at the T & T Lounge at 21st and Illinois Streets, Indianapolis, Indiana. Valdivias returned to Rivera's house and delivered one ounce of cocaine to Jackson in return for $1,800.00 in official government funds.

During the April 30 meeting FBI Special Agent William Blackketter conducted surveillance of the cocaine purchase. Blackketter testified that he saw Alvarez and Valdivias leave Rivera's residence, drive to 3330 North Meridian Street, return, and leave again, driving to 3330 North Meridian Street, where they entered and stayed for approximately thirty minutes before returning to Rivera's house.

Between April 30, 1986, and June 20, 1986, Special Agent Jackson unsuccessfully attempted to purchase cocaine from Marion Rivera, who stated that Ricardo Rivera was in jail and that she could not round up Alvarez and Valdivias. Later, Ricardo Rivera also advised Jackson that because he, Ricardo, had been arrested by the Indianapolis Police Department, Alvarez and Valdivias did not trust him and were staying away from him.

On another occasion, July 3, 1986, Special Agent Jackson drove to Rivera's new house at 2030 Caroline, Indianapolis, Indiana, where Ricardo Rivera and Alvarez accused Jackson of shorting them $100.00 on a cocaine purchase of June 20, 1986. Alvarez acknowledged he was present when Rivera counted the money, but admitted the cocaine sold to Jackson on June 24, 1986, was weak. The three men discussed a new sale of three to five ounces and Jackson wrote out on a piece of paper the prices of one ounce to five ounces, and handed the paper to Alvarez. Alvarez said he could probably sell five ounces for $9,000.00, but he could not guarantee it. When their conversation ended, Alvarez left, driving the same black van Jackson had been instructed to park behind when he made the earlier cocaine purchase on June 20, 1986.

On July 10, 1986, Special Agent Jackson telephoned Ricardo Rivera and then drove to his house with the informant. Alvarez and Rivera got into Special Agent Jackson's car and Alvarez said he was going to go buy the cocaine and that Valdivias had the cocaine. Fifteen to twenty minutes after Alvarez left, he returned and then left in his red Camaro. After three to five minutes, Jackson saw the red Camaro, driven by Valdivias, return and park across the street in front of Ricardo Rivera's residence. Alvarez returned as a passenger in a different black van, which parked behind Jackson's vehicle. Valdivias got out of the red Camaro, walked empty-handed to the passenger side of the black van where Alvarez was seated, received a package which he then gave to Ricardo Rivera and Ricardo handed it to Jackson. Jackson took the package of cocaine, walked to the trunk of his car and obtained a gym bag. He then gave Rivera $9,000.00 in official government funds as payment and placed the cocaine and remaining $1,000.00 along with the paper towel in which the cocaine had been wrapped into his gym bag. FBI agents arrived and placed Ricardo Rivera and others under arrest. Special Agent Yarborough arrested Special Agent Jackson and took custody of Jackson's gym bag containing the cocaine, paper towel and $1,000.00, along with the $9,000.00 which Rivera had stuffed into the backseat of Jackson's car. Jackson pointed out the hispanic male who had driven the black van to Special Agent Weiss, who placed that individual under arrest. Special Agents Yarborough and Weiss identified the driver of the black van as the defendant Jose Gutierrez.

Gutierrez was also arrested and his van seized for forfeiture purposes. At this point, the agents conducted a cursory search for weapons at the scene. On July 15, 1986, the government conducted an inventory search of Gutierrez's van but did not discover any contraband. Prior to the inventory search, the government released Gutierrez from custody and dismissed the charges against him. Gutierrez requested the release of his van on several occasions but the FBI refused. Based on these inquiries by Gutierrez and information the FBI received from a confidential source indicating the agents had missed something during their earlier search, the FBI conducted another search of the van on August 1, 1986. The agents discovered one gram of cocaine buried in the passenger's seat of the van. The agents did not obtain a warrant to search Gutierrez's van on August 1.

B.

On appeal, Alvarez and Gutierrez raise several objections to the proceedings below. Alvarez claims that the trial judge improperly admitted evidence of a prior conviction and that the record does not provide sufficient evidence that Alvarez was involved in a conspiracy or possessed cocaine with intent to distribute. Gutierrez argues that the warrantless search of his van on August 1 was illegal; that the trial judge erred in allowing the government to cross-examine a witness beyond the scope of the direct examination; that the testimony of another witness should have been excluded because it was beyond the scope of the conspiracy; and that there is insufficient evidence of his involvement in any conspiracy or possession of cocaine with intent to distribute. We shall deal with each of these issues in order.

II. Alvarez's Conviction

A. Prior Conviction

Alvarez asserts that the trial judge erroneously permitted his impeachment with a prior conviction for possession of cocaine pursuant to Rule 609 of the FEDERAL RULES OF EVIDENCE. The government prosecutor, out of the presence of the jury, told the trial judge that he intended to use a 1985 conviction of Alvarez for possession of cocaine for impeachment purposes. The trial judge held a hearing on the matter. Counsel for Alvarez objected to the use of the certified copies of the prior conviction but conceded that the prior conviction could be used for impeachment purposes. The prosecutor explained that the evidence would only be used for impeachment purposes and that there would be no discussion of the underlying facts. During this hearing, the trial judge read and discussed Rule 609 with the parties. After the prior conviction was introduced, the trial judge carefully instructed the jury that this information could be considered only in regards to the defendant's credibility, but could not be considered as evidence of guilt.

Rule 609 allows for the admission of some prior convictions for the limited purpose of impeachment if "the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant...." FEDERAL RULES OF EVIDENCE 609. Alvarez reads this court's opinion in United States v. Mahone, 537 F.2d 922 (7th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), to require an explicit determination on the record that the probative value of a prior conviction outweighs its prejudicial effect to the defendant. In fact, although the court in Mahone recommended explicit findings on Rule 609 determinations, it held that the trial judge did not abuse his discretion by implicitly...