U.S. v. Calderin-Rodriguez, CALDERIN-RODRIGUE

• Decision Date: 08 May 2000
• Docket Number: No. 99-2890,N,CONTRERAS-SILVERI,MARTINEZ-MOSTELIE,DEFENDANT,No. 99-3055,CALDERIN-RODRIGUE,99-2890,99-3055
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. MIGUEL- APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. ALBERTO- APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. RICARDO GORRIN, DEFENDANT - APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. ERNESTO- APPELLANT. o. 99-2892, Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 977

244 F.3d 977 (8th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. MIGUEL CALDERIN-RODRIGUEZ, DEFENDANT - APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. ALBERTO MARTINEZ-MOSTELIER, DEFENDANT - APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. RICARDO GORRIN, DEFENDANT - APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. ERNESTO CONTRERAS-SILVERIO, DEFENDANT - APPELLANT.

No. 99-2890, No. 99-2892, No. 99-3055

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: May 8, 2000

March 29, 2001

Appeals from the United States No. 99-2891 District Court for the __________ District of Nebraska. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before McMILLIAN, John R. Gibson, and Beam, Circuit Judges.

John R. Gibson, Circuit Judge.

Miguel Calderin-Rodriguez, Alberto Martinez-Mostelier, Ernesto Contreras, and Ricardo Gorrin were each convicted of conspiracy to distribute cocaine, methamphetamine, and/or amphetamine, in violation of 21 U.S.C. § 846 (1994). The indictment named six other co-conspirators, five of whom pleaded guilty, and one of whom has never been apprehended. Calderin-Rodriguez was sentenced to 225 months imprisonment, Martinez-Mostelier to 178 months, Contreras to 92 months, and Gorrin to 80 months. On appeal, the four argue¹ that there was insufficient evidence of conspiracy; that the district court² erred in admitting audio tapes of drug transactions and in allowing the jury to view transcripts of those tapes; that the court should have stricken testimony of one of the government's witnesses because the government violated the court's sequestration order; and that the court erred in imposing the sentences. We reject these and various other arguments. We affirm the convictions and sentences imposed.

The appellants and their co-conspirators sold cocaine and methamphetamine, operating principally out of two apartment buildings in the town of Hastings, Nebraska. The indictment covered the period of August 1, 1996 through May 17, 1998. The government's case consisted of testimony by undercover police and confidential informants who made controlled purchases of drugs from the group, audio tapes of those transactions, testimony by drug users who habitually bought drugs from the group, and evidence seized during searches of the apartments. The government also introduced the actual drugs purchased in the controlled transactions, as well as other drugs found in a hotel room after Gorrin had stayed there.

Kiley Bera gave the police entree to the drug world in Hastings. In late 1996 and 1997, she was in regular attendance at the apartment of Sammy Howell, a drug dealer who lived down the street from her. At Howell's she encountered Miguel Calderin-Rodriguez and Alberto Martinez-Mostelier, who came to Howell's about every day to deliver an ounce or so of methamphetamine and to collect money from Howell for past credit purchases. Later, she began to encounter Ignacio Ramirez at Howell's. Ramirez was always there with either Calderin-Rodriguez or Martinez-Mostelier, or both, who would often actually deliver the drugs to Howell and collect the money from him, but who would turn the money over to Ramirez. Between January 1997 and November of that year, Ramirez was at Howell's almost every day.

Bera visited the apartment of Ramirez, Calderin-Rodriguez, and Martinez-Mostelier at 309 North Lexington, and she saw Ramirez and Martinez-Mostelier in the apartment with a scale and powder all over a table. Ramirez later moved to 315 North Bellevue, #1, where he lived with Ricardo Gorrin; Bera visited Ramirez there regularly from about October 1997 to April 1998, and she almost always saw methamphetamine and methamphetamine transactions there. She named eight of Ramirez's customers, not counting the other members of the conspiracy. Ramirez told her he didn't like to sell small amounts, so he would front methamphetamine to Geovoni San Pedro Lopez and Ernesto Contreras (who lived upstairs at 315 North Bellevue, #2), who would make the smaller sales. Bera saw Ramirez with between $4,000 and $5,000 cash, and he told her on different occasions that he was going out of town to pick up "crank" or "a package."

Bera also knew Gorrin; she once saw him sell some cocaine to a customer when Ramirez wasn't home. Ramirez told Bera in February or March 1998 that he was angry with Gorrin because Gorrin had fronted $3,000 worth of Ramirez's methamphetamine to a woman.

Bera also testified about seeing Ramirez breaking up a large brick of methamphetamine, then weighing and packaging it. He put the small amounts into a plastic bag, then twisted the top and melted it with a lighter. Witness after witness testified that the drugs they got from the members of the alleged conspiracy were packaged in this way. Rita Hemmer, an experienced drug enforcement agent, said that she had never seen this characteristic packaging in any other case.

Another witness who bought drugs from the group was Clayton Smith, who testified that he bought methamphetamine from Ramirez about twenty times at the Bellevue apartment. Smith also bought from Martinez-Mostelier at 309 North Lexington, which was known as "the office," and the methamphetamine was packaged in the characteristic way already described. He bought cocaine and methamphetamine from Martinez-Mostelier for about six months. Once, when he went to buy drugs from Ramirez, Ramirez was not home, but Calderin-Rodriguez was there. Calderin-Rodriguez left the apartment, walked in the direction of the office, and returned with some methamphetamine for Smith, packaged in the characteristic way. Smith also purchased methamphetamine and cocaine from Contreras in the same type packages. At other times he bought from Gorrin when Ramirez was not home. Smith said Gorrin acted as doorman. Smith said, "[I]t was pretty much a network thing there, you know, if one didn't have it, they would point which way to go to whoever had it."

Lisa Doyen was another regular drug purchaser who testified that she bought methamphetamine from Calderin-Rodriguez, Ramirez, and Martinez-Mostelier. She testified that she saw Calderin-Rodriguez sell methamphetamine to five to fifteen other people.

Jeremy King also testified that he and his friends bought methamphetamine and cocaine from Martinez-Mostelier and Calderin-Rodriguez. On a couple of occasions, when Martinez-Mostelier or Calderin-Rodriguez didn't have the drugs, they sent him to Ramirez. Once, when King came to buy cocaine from Martinez-Mostelier and Calderin-Rodriguez, he was greeted with suspicion. Someone patted him down, and Calderin-Rodriguez laid a gun on the table. Another time, after he bought some methamphetamine from Calderin-Rodriguez, he complained that it looked short. Another indicted co-conspirator, Leo Parra, gave King some methamphetamine out of his pocket to make up for the underweight package.

Charles Lahiff was yet another regular drug purchaser who testified about goings-on at the office. He ran into Ramirez there and bought methamphetamine from him frequently after that. He bought methamphetamine and cocaine from Calderin-Rodriguez beginning in 1996 and from Martinez-Mostelier at about the same time. Lahiff participated in nine controlled buys in cooperation with the police. He wore a body wire that transmitted radio waves during these transactions. The police taped the transmissions, and the government introduced the tapes into evidence. Participants in the taped transactions with Lahiff included Calderin-Rodriguez, Contreras, and Gorrin, as well as other indicted co-conspirators. Often, more than one conspirator was involved in a single transaction. For instance, on May 1, 1998, Lahiff went to the office to buy from someone who was not indicted in this case; he ended up actually buying the drug from Contreras, but while Contreras was out picking up the merchandise, Calderin-Rodriguez forced Lahiff to sniff cocaine. Later testimony revealed that it is a common practice for drug dealers to make customers ingest drugs in their presence to prove they are not cooperating with police.

The two undercover police who participated in controlled buys were Rita Hemmer and Tony Keiper.³ Hemmer made eleven purchases from members of the conspiracy from October 14, 1997 to May 26, 1998. Hemmer was introduced to the group by Bera, who accompanied her during eight of the transactions. For each transaction, either Bera or Hemmer wore a transmitter so that Officer Ron Gardner could monitor the progress of the transaction and record it. Hemmer purchased methamphetamine from each of the appellants in this case, and many of her purchases involved cooperation between more than one of the appellants or between an appellant and another indicted co-conspirator. For instance, on October 28, 1997, Hemmer and Bera went to the office and ordered methamphetamine from Calderin-Rodriguez. Martinez-Mostelier, who was also there, fetched the drugs from the bedroom and delivered them to Hemmer. Similarly, on January 13, 1998, Hemmer and Bera went to Martinez-Mostelier's residence (after he had moved from the North Lexington apartment) and ordered methamphetamine. Martinez-Mostelier left for five to ten minutes, and shortly after he returned, one of the other indicted co-conspirators arrived with the drugs. Again, on March 25, 1998, Hemmer ordered a quantity of methamphetamine from an indicted co-conspirator who did not have the drugs on hand. He made a telephone call, speaking in Spanish,⁴ and Hemmer understood the word "Neto." The co-conspirator sent her to the North Lexington building, where Contreras delivered half the ordered amount of drugs and where Calderin-Rodriguez later arrived, delivering the other half of the order. In the audio tape of the transaction with Contreras, Hemmer asks, "Are you Neto?" and Contreras answers, "Yeah." This pattern of cooperation among the appellants and other...