U.S. v. Casas, s. 92-2578

• Decision Date: 03 September 1993
• Docket Number: 92-2582,Nos. 92-2578,s. 92-2578
• Citation: 999 F.2d 1225
• Parties: UNITED STATES of America, Appellee, v. Carlos CASAS, Appellant. UNITED STATES of America, Appellee, v. Efren CASAS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1225

999 F.2d 1225

UNITED STATES of America, Appellee, v. Carlos CASAS, Appellant.

UNITED STATES of America, Appellee, v. Efren CASAS, Appellant.

Nos. 92-2578, 92-2582.

United States Court of Appeals,

Eighth Circuit.

Submitted April 14, 1993.

Decided July 22, 1993.

Rehearing Denied Sept. 3, 1993.

Katheryn B. Goudy, Des Moines, IA, argued, for appellants.

Lester A. Paff, Asst. U.S. Atty., Des Moines, IA, argued, for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and BEAM, Circuit Judge.

HENLEY, Senior Circuit Judge.

Carlos Casas and Efren Casas (collectively defendants) appeal from final judgments entered in the district court, ¹ upon jury verdicts, finding them guilty of involvement in a cocaine conspiracy. Both defendants were found guilty of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and distributing cocaine in violation of 21 U.S.C. § 841(a)(1). Both defendants received substantial prison sentences; Carlos Casas was sentenced to 174 months and Efren Casas was sentenced to 168 months. The district court also ordered two pieces of property, one owned by Carlos Casas and one owned by Efren Casas, to be forfeited pursuant to 21 U.S.C. § 853. Defendants challenge the convictions, sentences, and forfeitures. We affirm.

I.

This case involves a conspiracy to distribute cocaine from Chicago, Illinois to Des Moines, Iowa. The government's evidence showed that defendants sold cocaine in Chicago and Des Moines, usually to Fernando and Cristobal Hernandez. The Hernandezes distributed it in Des Moines with the help of Jose Aguilar and William Vandermark.

A key witness for the government was coconspirator Fernando Hernandez. He testified that his relationship with the Casas brothers began in January 1988 when he purchased a half-ounce of cocaine from Carlos Casas. In the next six days, he made four separate purchases totalling eleven ounces. Twelve days later, he purchased a half-kilogram (18 ounces) and took half of that amount to Des Moines to sell. Three weeks later, he purchased a kilogram. Most of these transactions occurred in the body shop owned by Efren Casas on Kedzie Street in Chicago (the Chicago body shop). Fernando Hernandez testified that he purchased approximately thirty kilograms from the Casases from 1988 until their relationship ended in 1991.

Chicago Police Officer Alfonso Bautista testified that he arrested Efren Casas in August 1987 for attempting to sell him a half-ounce of cocaine at the Chicago body shop. Evidence of the arrest was admitted at trial over defendants' objections.

Cristobal Hernandez, who was at one time in the drug business with his brother Fernando, also testified about his drug transactions with Carlos Casas. He claimed he began buying cocaine from Carlos Casas in the winter of 1987. He also testified that during one drug transaction Efren Casas brought the cocaine to Carlos Casas from another location. Cristobal Hernandez testified that he purchased approximately ten to fifteen kilograms from Carlos Casas from 1987 until 1991.

Jose Aguilar and William Vandermark worked in the drug trade for Fernando Hernandez. Aguilar met Carlos Casas in the summer of 1990 at Hernandez's mother's house in Des Moines. He saw Carlos Casas deliver to Fernando Hernandez two kilograms of cocaine at that house on two separate occasions, once in September 1990 and once in November 1990. Vandermark testified that he received two kilograms of cocaine from Carlos Casas in Des Moines on two separate occasions, once at Vandermark's apartment in late 1990 and once at Fernando Hernandez's mother's house in early 1991.

Agent Andre Kellum of the federal Drug Enforcement Agency (DEA) testified that in May 1990 he negotiated with Carlos Casas at the Chicago body shop for the purchase of three kilograms of cocaine. Kellum and Carlos Casas discussed the deal alone in the office of the body shop, and Kellum did not recall if Efren Casas was present in the garage portion of the body shop at the time. Kellum never actually purchased any cocaine from Carlos Casas.

The dealings between the Casases and Hernandezes soured sometime after Fernando Hernandez purchased nine kilograms of cocaine from Carlos Casas in December 1990 for $226,250.00. Two of the nine kilograms were of inferior quality, and Fernando Hernandez and Aguilar met with both Carlos and Efren Casas to negotiate an exchange at a body shop on N.W. 135th Street in Maywood, Illinois (the Maywood body shop). The Casases agreed that they would exchange only one of the bad kilograms, and this effectively ended the relationship.

Carlos Casas was arrested in October 1991 at the Chicago body shop. A search of the body shop revealed no drugs or guns, but a notebook containing Fernando Hernandez's phone number was found. DEA Agent Steve Hummel, who arrested Carlos Casas, testified that he asked Casas "where did he keep the cocaine when he had cocaine, and Carlos Casas told me that he would page Manuel, and Manuel would bring it."

The jury convicted Carlos Casas of three counts of distributing cocaine; Efren Casas of two counts of distributing cocaine; and both defendants of conspiracy to distribute cocaine. On appeal, defendants argue that the district court erred in (1) admitting evidence of Efren Casas's 1987 arrest; (2) refusing to instruct the jury to determine the quantity of cocaine attributable to the defendants; (3) determining the quantity of cocaine attributable to the defendants at sentencing; and (4) applying the preponderance of the evidence standard of proof during the forfeiture proceedings.

II.

Defendants argue that the district court erred in admitting evidence that in August 1987 Efren Casas was arrested for selling cocaine to Chicago Police Officer Alfonso Bautista (the 1987 controlled-buy). They contend that this controlled-buy pre-dated as a matter of law the charged conspiracy, and that it is an inadmissible "prior bad act" under Fed.R.Evid. 404(b).

Defendants first objected to the introduction of this evidence at a pre-trial conference. They claimed the 1987 controlled-buy was not part of the charged conspiracy and that it had "nothing to do with any of the witnesses or any of the other defendants charged in this conspiracy." The government argued that the controlled-buy was within the scope of the conspiracy, and alternatively, that it was admissible as a prior similar act, under Fed.R.Evid. 404(b), to show knowledge of cocaine dealing and intent to deal cocaine.

The district court, at the pre-trial conference, found that the evidence was clearly admissible to show knowledge and intent--with a limiting instruction to the jury--but also noted that the evidence may be admissible "for any purpose." The court stated:

I can't tell whether to limit until I know more about the evidence.... I will welcome any requests for limiting instructions if the evidence is only being offered for some narrower purpose than any purpose under the issues, but at this point there hasn't been a sufficient showing that it would be inadmissible for any purpose.

Defendants renewed their objection at trial, both before and after Officer Bautista's testimony, and the district court overruled both objections. Defendants did not request a limiting instruction, the district court did not give a limiting instruction, and the evidence of the 1987 controlled-buy was admitted as relevant evidence of the crimes charged.

On appeal defendants first argue that it was error for the jury to consider evidence of the 1987 controlled-buy as evidence of the conspiracy because this transaction occurred before the charged conspiracy, or any other conspiracy which the government may have proven at trial. They claim that while the government may have shown a conspiracy existed in 1989 or 1990, the government presented no evidence of an agreement between the defendants in 1987. Moreover, they claim that the only evidence of any wrongdoing by either defendant in 1987 is Efren Casas's drug sale to a police officer in August of that year.

In the indictment, the government alleged that Carlos Casas and Efren Casas conspired to distribute cocaine "[f]rom on or about August 1, 1987 to April 15, 1991." To convict defendants of conspiracy under 21 U.S.C. § 846, the government must prove that defendants entered into an agreement to distribute cocaine; unlike the general conspiracy statute, 18 U.S.C. § 371, no overt act in furtherance of the conspiracy is required here. United States v. Gaines, 969 F.2d 692, 696 (8th Cir.1992) (citing United States v. Covos, 872 F.2d 805, 809-10 (8th Cir.), cert. denied, 493 U.S. 840, 110 S.Ct. 124, 107 L.Ed.2d 85 (1989)). "The government did not need to show a formal agreement; showing a tacit agreement by understanding proven wholly by circumstantial evidence or by inferences from the parties' actions is sufficient." United States v. Searing, 984 F.2d 960, 964 (8th Cir.1993) (citations omitted). The government must show more, however, than defendants' mere knowledge of the conspiracy; it must establish some degree of knowing involvement and cooperation. Id.

We review a district court's evidentiary ruling for abuse of discretion, recognizing that "[t]he trial court exercises 'considerable discretion' in determining the evidence to be admitted, and that discretion is particularly broad in a conspiracy trial." United States v. Davis, 882 F.2d 1334, 1343 (8th Cir.1989) (citations omitted), cert. denied, 494 U.S. 1027, 110 S.Ct. 1472, 108 L.Ed.2d 610 (1990). Here, the defendants challenge the admission of the 1987 controlled-buy because they claim there was no proof that an agreement to distribute cocaine existed at the time of the arrest. We believe defendants have misconstrued the government's theory of the case. The government presented the 1987 controlled-buy as evidence that Efren Casas and Carlos Casas had agreed to distribute cocaine.

The government offered proof that Carlos Casas began...