U.S. v. Alviar
| Citation | 573 F.3d 526 |
| Decision Date | 23 July 2009 |
| Docket Number | No. 07-2366.,No. 07-2338.,No. 07-2336.,No. 07-2385.,No. 07-2333.,07-2333.,07-2336.,07-2338.,07-2366.,07-2385. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Juan ALVIAR, Rodolfo Madrigal, Jose Melero, Apolinar Delgado-Rios, and Saul Tejeda, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Stuart D. Fullerton, Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
James A. Walrath, Attorney (argued), Law Offices of James A. Walrath, Milwaukee, WI, for Rodolfo Madrigal, Defendant-Appellant.
Richard L. Zaffiro, Attorney (argued), Wauwatosa, WIl, for Jose Melero, Defendant-Appellant.
Carl P. Clavelli, Attorney (argued), Chicago, IL, for Apolinar Delgado Rios, Defendant-Appellant.
William H. Dazey, Jr., Attorney (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, William E. Marsh, Attorney, for Saul Tejeda, Defendant-Appellant.
Before FLAUM, RIPPLE, and SYKES, Circuit Judges.
Saul Tejeda, Juan Alviar, Jose Melero, Rodolfo Madrigal, and Apolinar Delgado-Rios were among a group of individuals indicted in connection with an Aurora, Illinois drug conspiracy. While most of the indicted individuals pleaded guilty, those five defendants went to trial, where a jury convicted each as charged. Tejeda is serving a 360 month prison sentence; Alviar and Melero are serving 262 months; Madrigal is serving 240 months; and Delgado-Rios is serving 121 months. Defendants appeal various aspects of their consolidated trial and their sentences. We affirm on all counts.
In 2003, FBI agents began investigating a suspected drug conspiracy in Aurora. The investigation focused on Tejeda and his associates. The investigation eventually employed cooperating witnesses; pen register information from specific telephones; a court-authorized wiretap; ongoing police surveillance; and several searches.
Based on evidence obtained, a grand jury returned its second superseding indictment on November 17, 2005. The indictment charged seventeen individuals, including Tejeda, Alviar, Melero, Madrigal, and Delgado-Rios, with conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846 (Count One). The indictment charged Tejeda alone with five counts of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts Two through Five, Seven); four counts of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Counts Six, Eight through Ten); and one count of laundering narcotics proceeds in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (Count Eleven). It charged Tejeda and Alviar with two counts of attempting to possess cocaine in violation of 21 U.S.C. § 846 (Counts Twelve and Thirteen). Tejeda, Melero, and Madrigal were charged with two counts of using a telephone to facilitate a narcotics conspiracy in violation of 21 U.S.C. § 843(b) (Counts Seventeen and Eighteen). The indictment charged Alviar, by himself, with three counts of possession of cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts Fourteen through Sixteen). Melero was charged individually with two counts of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Counts Nineteen and Twenty). Delgado-Rios was charged individually with two telephone counts in violation of 21 U.S.C. § 843(b) (Counts Twenty-Three and Twenty-Four).
The indictment stated that between 2000 and March 2005, Tejeda was a wholesale distributor of cocaine in Aurora, and he obtained and resold cocaine in kilogram and ounce quantities. According to the indictment, Tejeda's co-defendants assisted him. Tejeda, Alviar, Melero, and Madrigal first were members of the Latin Homeboys street gang, and then they became members of the Latin Kings, while Delgado-Rios was part of Tejeda's close family circle. Tejeda relied on his fellow gang members and close family to serve as lookouts, to direct him to customers, to store and transport cocaine and money for him, and to help him steal cocaine from others. The indictment further alleged that Tejeda's gang membership provided his operation with protection from rivals; specifically Alviar and Melero specialized in providing protection through their positions as Latin King enforcers.
Tejeda and Melero moved pretrial to exclude gang membership evidence as unduly prejudicial and of minimal probative value. According to Tejeda, "evidence that defendants are members of the Latin Homeboys or Latin Kings is not especially probative of whether they jointly ventured to distribute drugs to further the criminal interest of the Latin Homeboys or Latin Kings," and "the missing link between the `gang' and the `criminal activity' distinguishes this case from other cases where gang evidence was found admissible for the purpose of establishing a joint venture or the existence of a conspiracy."
The government in its consolidated response to defendants' pretrial motions responded that: "[G]ang membership in this case is part of the glue that held the charged conspiracy together, and is therefore part-and-parcel of the proof necessary to demonstrate that defendants had a criminal intent and agreement to conspire." The government added that it would present witnesses to testify that "the Aurora Latin King's greatest source of revenue was proceeds from cocaine sales, a fact supported by the conspiracy evidence in this case."
On May 3, 2006, the district court denied defendants' motions to exclude evidence of gang membership without placing restrictions on the prosecution's use of gang-related evidence. On May 9, Delgado-Rios filed a motion objecting on Rule 403 grounds to "[a]dmission of gratuitous gang activities." The court denied the motion without prejudice to raising the same objection at trial.
Defendants' consolidated trial commenced on May 16, 2006. It spanned eleven days. In its opening statement, the government described Tejeda's cocaine trafficking organization and its relation to gangs: "One of the key ways defendant Saul Tejeda protected himself and his drug organization is by joining the Latin Kings street gang in Aurora."
The government introduced testimony of law enforcement officers, lay witnesses, and cooperating defendants. The government had wiretapped a telephone used by Tejeda, and it played 189 calls at trial. It also introduced seventeen undercover recordings made by cooperating witnesses, which documented controlled purchases of one ounce of cocaine from Tejeda on February 4 and February 11, 2004; a sale by Tejeda of 2.8 grams of cocaine on October 5, 2004; two sales of cocaine by Tejeda on October 8, 2004; and a one ounce purchase on November 18, 2004. The recordings documented the possession of two ounces of cocaine by Tejeda and Alviar on February 11, and their attempt to purchase ten kilograms of cocaine on February 15, 2005. They captured Alviar's statement that he was a "hood enforcer" for the Latin Kings and that Melero was the "enforcer."
The government introduced evidence that a search of Melero's house upon his arrest revealed a 9 mm pistol and an SKS assault rifle. Searching Alviar's house, agents discovered drug paraphernalia and over 300 grams of cocaine. There was evidence that, after his arrest, Delgado-Rios stated that he was a money courier for a drug dealer, that he purchased cocaine for personal use, and that he had provided leads for drug robberies.
Cooperating defendant Andy Lopez testified that he was a gang member with Alviar, Melero, Madrigal, and Tejeda, as well as Tejeda's roommate. He testified he had known Tejeda was selling cocaine since at least 2000. He witnessed Tejeda storing quarter-kilograms of cocaine in their apartment, along with guns, a scale, and baggies. Later, Tejeda would store cocaine with Lopez for him to sell. Tejeda additionally rented an apartment for Lopez in which to store cocaine and cash. In June 2004, authorities raided and seized about half a kilogram of cocaine.
Lopez testified that Tejeda had admitted robbing another drug dealer to him. He also testified about a drug robbery he committed with Melero, and about other robberies Melero had attempted. He testified that Madrigal purchased cocaine from Tejeda. Lopez witnessed Tejeda discussing the purchase of cocaine from Delgado-Rios and from Melero. He witnessed Alviar sell two ounces of cocaine to Tejeda. Lopez made a series of recordings with some of the defendants. On cross-examination, Lopez stated that he did not know what the Latin Kings had to do with the drug conspiracy on trial.
Another cooperating defendant, Carlos Escalante, testified that he had known Tejeda since 1998 and Alviar since 2004. Escalante had long been a Latin King, and he testified about the gang and the position of enforcer. According to Escalante, the primary source of income for the Aurora Latin Kings was cocaine distribution. He testified about the takeover of the Latin Homeboys by the Latin Kings. Escalante began selling cocaine upon release from prison in 2004, buying from Tejeda once or twice a week until October 2004. Escalante and Tejeda were intercepted negotiating cocaine transactions; Escalante interpreted the recordings for the jury. Escalante also testified to seeing a handgun, cocaine, and a scale at Tejeda's house.
Cruz Samaniego next testified as a cooperating defendant. Tejeda's cousin, Samaniego had been a member of the Latin Homeboys since 1999. He described how Tejeda was a Latin Homeboy in 1996 and 1997 and how Alviar, Melero, and Madrigal were Latin Kings. Samaniego bought cocaine from Tejeda, Alviar, and Melero. Samaniego and Tejeda were intercepted on the wiretap negotiating cocaine transactions.
Heriverto Rios cooperated and testified that he was a former Latin Homeboy and had known defendants for years. He testified about drug robberies that he had been told about involving Tejeda, Melero, Madrigal, and Delgado-Rios. Rios testified that Tejeda supplied...
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