U.S. v. Arroyo, 03-3113.

• Decision Date: 05 May 2005
• Docket Number: No. 03-3113.,03-3113.
• Citation: 406 F.3d 881
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ruben ARROYO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

406 F.3d 881

UNITED STATES of America, Plaintiff-Appellee, v. Ruben ARROYO, Defendant-Appellant.

No. 03-3113.

United States Court of Appeals, Seventh Circuit.

Argued February 24, 2005.

Decided May 5, 2005.

COPYRIGHT MATERIAL OMITTED

Kaarina Salovaara (argued), James P. Fieweger, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Michael J. Gonring, James W. Richgels (argued), Quarles & Brady, Milwaukee, WI, for Defendant-Appellant.

Before FLAUM, Chief Judge, and MANION and EVANS, Circuit Judges.

FLAUM, Chief Judge.

A jury convicted defendant-appellant Ruben Arroyo of possession with intent to distribute heroin and conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. §§ 841 and 846. At the sentencing hearing, the government presented evidence that defendant also distributed large quantities of cocaine. Applying the federal sentencing guidelines to both the heroin and cocaine transactions, the district court sentenced Arroyo to 360 months of imprisonment and five years of supervised release. Arroyo now appeals his conviction and sentence. For the reasons that follow, we affirm the conviction and order a limited remand pursuant to our decision in United States v. Paladino, 401 F.3d 471 (7th Cir.2005).

I. Background

Federal law enforcement agents began investigating Arroyo with the aid of a confidential informant ("CI") in June 1999. Over a period of about six weeks, officers monitored, recorded, and performed surveillance of 21 meetings and telephone conversations between the CI and Arroyo.

During one of those conversations, on July 11, 1999, Arroyo arranged for his associate Efrain Gamboa-Cazarez ("Gamboa") to deliver a sample of heroin to the CI. Unbeknownst to defendant, the CI immediately turned over this sample to law enforcement. A few weeks later, defendant promised to sell the CI two kilograms of heroin. On July 30, 1999, Arroyo supplied Gamboa with a car equipped with a concealed compartment and sent Gamboa to his drug source, Regalo, to pick up the heroin. Regalo provided only one kilogram, which defendant directed Gamboa to deliver to the CI in a McDonald's parking lot at the intersection of Cermak Road and Harlem Avenue in Chicago, Illinois.

Neither Arroyo nor Gamboa were aware that law enforcement officers were present at the McDonald's and were prepared to arrest the participants once the transaction was complete. As planned, Gamboa arrived at the parking lot, gave the CI the package from Regalo, and told him he would receive the second kilogram after Gamboa took the money to the supplier. Gamboa handed the CI a vinyl package resembling a shaving kit. The CI opened the package and briefly removed a bag containing two smaller plastic bags each holding a white substance. At that point, law enforcement agents emerged and arrested the CI and Gamboa. FBI Special Agent Randall McIntosh seized the package.

Agent McIntosh and Task Force Officer James Washington briefly inspected the package in the parking lot. McIntosh later prepared an arrest report in which he described the contents of the package as "chalky white." After leaving the scene, Washington and FBI Special Agent Holly Meador drove the package to the FBI office downtown where they secured it in an evidence locker. The following Monday, August 2, 1999, Washington and another officer recorded the package in the evidence log. Washington completed a report in which he referred to the substance as a "brown" powder "suspected to be brown heroin." The same day, the package was submitted to a Drug Enforcement Administration ("DEA") laboratory for analysis, where testing confirmed that the package contained 998.1 grams of heroin of varying purity.¹

On August 6, 1999, after several telephone calls to the DEA, Arroyo turned himself in at the United States Attorney's Office. Represented by counsel, Arroyo agreed to cooperate with the government, and agents held him at a hotel where he provided information to the government. Arroyo admitted to law enforcement agents that he had previously sold cocaine to the CI and that he had arranged the July 30 heroin deal with Efrain Gamboa, Sr., his drug source.

Sometime between 5:00 P.M. on August 10 and 11:15 A.M. on August 11, Arroyo escaped from the custody of federal agents. The FBI arrested him in Yuma, Arizona on August 19, and he was returned to custody in Chicago.

On August 27, 1999, Arroyo and Gamboa were charged in a two-count indictment with conspiring to possess with intent to distribute, and possessing with intent to distribute, approximately one kilogram of heroin. Gamboa pled guilty but did not agree to assist the government or to cooperate against Arroyo, who proceeded to trial in February 2003.

Over the course of the five-day trial, the government called 13 witnesses who testified about the investigation, the recorded conversations between defendant and the CI, the chain of custody of the drug evidence, defendant's phone calls to the DEA, defendant's post-arrest statement, and his flight. The CI did not testify. Several officers confirmed that they had initialed the arrest report describing the suspected heroin as "white" even though it was later described as "brown."

Arroyo's theory at trial was that he had attempted to "rip off" the CI by providing him with a look-alike substance that was not in fact heroin. He claimed that the white substance that he sent to the July 30 sale was not the same brownish substance that the government ultimately introduced at trial. Defendant offered the testimony of his co-defendant Gamboa that the package seized on July 30 contained a white substance. He also presented the testimony of Albert Charnotta, his sister's former boyfriend, who used to live with Arroyo. Charnotta testified that on July 30, 1999, he saw defendant sitting at the kitchen table placing into plastic bags a white powdery substance that he believed was either baking soda or vitamin B-12.

The jury convicted defendant on both counts and returned a special verdict form finding that defendant had conspired to distribute, or possess with intent to distribute, one kilogram or more of heroin, and that he had actually possessed with intent to distribute between 100 grams and one kilogram of heroin.

The district court conducted a sentencing hearing on July 29 and 31, 2003. The government presented the testimony of one witness, Ricardo Garcia, a convicted drug trafficker who testified pursuant to a written plea agreement with the government. Garcia had admitted to possessing 150 to 200 kilograms of cocaine and was sentenced to 58 months of imprisonment. Garcia testified that he had delivered large quantities of cocaine on behalf of Arroyo in 1998 and 1999. According to Garcia, Arroyo would supply him with the drugs inside a van, and Garcia would deliver that van to a customer named Jones and assist Jones in delivering the drugs to his customers. Jones would then pay Garcia, and Garcia would deliver the money to Arroyo at his apartment. Garcia testified that he delivered cocaine on behalf of Arroyo five or six times and that he had delivered marijuana once. The district court credited Garcia's testimony and sentenced Arroyo based on a total drug quantity of one kilogram of heroin and 50 kilograms of cocaine (one delivery of 30 kilograms, and four additional deliveries of five kilograms each).² This drug quantity resulted in a base offense level of 36. Based on a two-level enhancement for obstruction of justice and a criminal history category of V, the guidelines yielded a sentencing range of 360 months to life. The court sentenced defendant to 360 months.

II. Discussion

Arroyo raises several issues with respect to both his conviction and sentence. First, he argues that the district court abused its discretion in refusing to send the drug evidence into the jury room during deliberations. Arroyo also contends that the district court abused its discretion in excluding from evidence an IRS memorandum that he asserts would have corroborated his defense. With respect to his sentence, defendant claims that the district court applied the guidelines incorrectly by including the cocaine in its calculation of drug quantity without explicitly tying this evidence to his offense of conviction. Finally, defendant argues that his sentence violates the Sixth Amendment as interpreted by the Supreme Court in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and seeks a remand pursuant to Paladino. We address each of Arroyo's arguments in turn.

A. Drug Evidence

During the trial, a court security officer showed the jury the drug evidence by holding the exhibit in his hand as he walked in front of the jury. On the third day of the trial, the heroin was placed in front of the jury on the government's evidence table, and it remained there for the rest of the trial. At the end of the trial, the judge informed the jury that the drugs would not be sent back into the jury room, but that he would work out a process if the jury wanted to see the heroin.

During deliberations, the jury sent out a note requesting to "see the sample heroin and heroin." The trial judge conferred with the parties and considered various options for allowing the jury to examine the drug evidence without compromising the safety of the jury or the exhibit. Over defendant's objection, the judge decided to allow the jury to return to the courtroom to view the evidence in the presence of the judge, counsel, and FBI agents.

Defendant contends that the court violated his right to due process by limiting the jury's access to the drug evidence to a "single, inhibited viewing that denied the jury a meaningful opportunity to evaluate and discuss the exhibit's relevant qualities." He asserts that the jury's determination of the authenticity of the evidence—a crucial issue in the case—required the jurors to be able to examine the evidence closely and discuss with each...