U.S. v. Aquilla, 91-1951
| Decision Date | 29 September 1992 |
| Docket Number | No. 91-1951,91-1951 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James J. AQUILLA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Barry R. Elden, Asst. U.S. Atty. and James J. Tharp (argued), Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.
Adam Bourgeois (argued), Chicago, Ill., for defendant-appellant.
Before CUMMINGS and MANION, Circuit Judges, and GORDON, Senior District Judge. *
James Aquilla was convicted of one count of conspiracy to distribute cocaine, two counts of distributing cocaine, and one count of using a telephone to facilitate a violation of the narcotics laws. The district court, after rejecting Aquilla's argument that he had accepted responsibility for his crimes, sentenced Aquilla to 72 months imprisonment. Aquilla appeals his conviction and sentence. We affirm.
This case centers around two distributions of cocaine Aquilla and a coconspirator, Henry Centracchio, made to Gary Lewellyn on May 10, 1988 and January 25, 1989. Unbeknownst to Aquilla and Centracchio, Lewellyn was working as an undercover informant for the FBI.
Lewellyn had begun working for the FBI and the DEA in 1984, when he was an inmate at the Federal Correctional Center in Sandstone, Minnesota. While at Sandstone Lewellyn met Thomas Guth (also known as Thomas Gucci). Lewellyn and Guth had a number of conversations about schemes for laundering drug money that Lewellyn reported to FBI.
After some time at Sandstone, Lewellyn was transferred to a minimum security prison camp at Maxwell Air Force Base in Alabama. Among Lewellyn's fellow prisoners at Maxwell was Jose Martinez of Miami, a convicted drug dealer. Martinez, who owned an air charter business, wanted to establish a cocaine distribution network in Chicago. As it turned out, Guth was looking for a source of cocaine to distribute in Chicago. After being released from prison, Guth visited Lewellyn at Maxwell in June 1987. With the FBI's blessing, Lewellyn brought Martinez and Guth together, and during the summer and early fall of 1987, the three established a plan to ship large quantities of cocaine from Miami to Chicago.
Martinez was released from prison in the summer of 1987. In late September, Guth received eight kilograms of cocaine from Martinez. Several weeks later, Guth received ten more kilograms of cocaine. Sales in Chicago, however, were slower than Guth expected, so Guth recruited Henry Centracchio, whom he had met in prison, to help distribute the cocaine and collect debts from customers. But even with Centracchio's help, sales continued to be slow, and Guth and Centracchio had trouble collecting payments. Because of this, Guth and Centracchio were unable to pay Martinez.
Guth and Centracchio attributed their problems to the poor quality of the cocaine Martinez had supplied. They told Lewellyn (who was still at Maxwell) that the best solution to their problems was for Martinez to continue to ship cocaine to Chicago for them to sell to generate cash. However, Martinez disagreed; he refused to ship any more cocaine to Chicago until Guth and Centracchio paid him in full for the first two shipments.
In January 1988, Lewellyn was released from Maxwell to a halfway house in Chicago so that he could continue to supply the FBI information about cocaine trafficking. Over the next two months, Guth and Centracchio discussed with Lewellyn their problems concerning Martinez and their prospects for garnering additional cocaine. Eventually, the three had a luncheon meeting at the Rosebud restaurant in Chicago on March 1, which Lewellyn was surreptitiously recording. At the meeting, the three came up with a plan to run their distribution organization. Lewellyn, who was a former stockbroker, was to handle finances, and Centracchio, rather than Guth, was to handle the operation's logistics. Centracchio also told Lewellyn that he had a new supplier of cocaine: Aquilla, with whom Centracchio had met the night before, had told Centracchio that he wanted his and Guth's cocaine business, that he was expecting a shipment of 10 kilograms, and that he could possibly supply 20 to 100 kilograms a month to Centracchio.
As fate would have it, Aquilla also happened to be having lunch at the Rosebud on March 1. He ran into Centracchio, who introduced him to Lewellyn. The three exchanged small talk and pleasantries, but their conversation had nothing to do with cocaine.
Sometime after the luncheon meeting, Centracchio and Guth had a falling out because Centracchio believed that Guth was unreliable. Despite this falling out, there is evidence of drug deals between Aquilla and Guth. However, the two actual sales the indictment charged Aquilla with making were between him, Centracchio, and Lewellyn.
The first of these sales occurred on May 10, 1988. Centracchio and Lewellyn had arranged the deal during a series of recorded telephone calls in April and May. Lewellyn had a customer who needed cocaine, and Centracchio told Lewellyn that he could obtain the cocaine from Aquilla. The agreed sale price was to be $9,000, to be paid by Lewellyn when Centracchio delivered the cocaine.
On May 10, Aquilla met Centracchio. Aquilla gave Centracchio one-half kilogram of cocaine, which Centracchio placed in the trunk of his car. The two then drove in Centracchio's car to the Marriott Hotel near O'Hare Airport and parked in the hotel parking lot. Lewellyn arrived shortly afterward. While Aquilla stayed in Centracchio's car, Lewellyn and Centracchio went inside the hotel. They came back out a short while later, and exchanged the cocaine and money. Centracchio told Lewellyn that he had obtained the cocaine from Aquilla. During the transaction, an FBI agent on surveillance duty saw Aquilla in Centracchio's car.
In August, Lewellyn suggested to Centracchio that they arrange another half-kilogram deal with Aquilla. After checking with Aquilla, Centracchio told Lewellyn that Aquilla wanted to deal only in whole kilograms. By October, though, Aquilla was looking for customers. He called Centracchio to ask him if he had heard from Guth or any of Centracchio's "other guys." Centracchio said he had not, but that he would try to line some things up.
Two days later, on on November 10, Lewellyn asked again about a possible half-kilogram deal. This time, Centracchio was receptive, and told Lewellyn that he would try to get hold of "the guy." Minutes later, Centracchio called Aquilla and asked, "Remember that ... half-size guy?" Aquilla said he did, and that a deal the following Tuesday might be possible.
No deal took place the following Tuesday, but over the next two months there were numerous recorded phone calls between Centracchio and Lewellyn, and Centracchio and Aquilla, attempting to arrange a deal. Finally, in January 1989, the deal was arranged. On January 25, Centracchio met Lewellyn at the Mr. Beef & Pizza Restaurant in Park Ridge. Centracchio did not have the cocaine with him. He explained to Lewellyn that Aquilla had the cocaine in a different location and that Aquilla wanted the money before he would give up the cocaine. Lewellyn refused to agree to this arrangement, so Centracchio left the restaurant and drove to the parking lot of a nearby shopping mall where Aquilla was waiting. Aquilla, who was carrying a bag containing one-half kilogram of cocaine, and Centracchio drove in Centracchio's car back to the restaurant. Centracchio went into the restaurant carrying the bag of cocaine Aquilla had given him, and met Lewellyn. Lewellyn went out to his car to get the money. He went back inside the restaurant, and he and Centracchio exchanged the money for the cocaine.
Aquilla was indicted and subsequently arrested in August 1989. The indictment charged him with conspiring with Centracchio, Guth, Martinez, and others to distribute multiple kilograms of cocaine. The indictment also charged Aquilla with distributing one-half kilogram of cocaine on May 10, 1988 and again on January 25, 1989. Finally, the indictment charged Aquilla with four counts of using the telephone, on November 10 and other dates, to facilitate violations of the narcotics laws. The district court dismissed two of the telephone counts. The jury acquitted Aquilla of another of the telephone counts, but convicted him on the telephone count alleging the November 10 call, the conspiracy count, and both distribution counts.
Aquilla argues that the evidence was insufficient to support the jury's verdict on any of the counts of which it convicted him. On the distribution counts, Aquilla argues that the evidence was insufficient to show that he actually possessed the cocaine that was distributed to Lewellyn. However, Aquilla was charged with and convicted of distributing, not possessing, cocaine. Is possession an element of distribution? The cases are inconsistent. Compare United States v. Jackson, 526 F.2d 1236, 1238 (5th Cir.1976) () with United States v. Stevens, 521 F.2d 334, 337 n. 2 (6th Cir.1975) () and United States v. Brunty, 701 F.2d 1375, 1381 (11th Cir.1983) (). But the answer to this question (which in any event was raised by neither Aquilla nor the government) is irrelevant in this case because in addition to evidence of distribution, there was evidence sufficient for the jury to find that Aquilla possessed the cocaine that was eventually delivered to Lewellyn. Centracchio testified that he received the cocaine for both transactions from Aquilla. This testimony was corroborated by...
To continue reading
Request your trial
- SDCP v. Wausau Underwriters Ins. Co., No. 20789
-
Richardson v. Nationwide Mut. Ins. Co., 01-SP-1451.
... ... 149, 687 N.E.2d at 78. In certifying the present appeal to us, the United States Court of Appeals remarked that "[c]ourts across the nation are hopelessly ... ...
- In re Idleaire Technologies Corporation, Case No. 08-10960(KG) (Bankr.Del. 2/18/2009)
- Mellin v. N. Sec. Ins. Co.