U.S. v. Castro

Decision Date17 July 1980
Docket NumberNo. 79-1542,79-1542
Citation629 F.2d 456
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jose CASTRO, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Mary L. Sfasciotti, Kenosha, Wis., for defendant-appellant.

Thomas P. Sullivan, U. S. Atty., Jeffrey E. Rogers, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, SWYGERT and CUMMINGS, Circuit Judges.

SWYGERT, Circuit Judge.

In this appeal we hold that the defendant's conviction of conspiracy to distribute heroin must be reversed on the basis of the Double Jeopardy Clause. Additionally, his conviction on the substantive charge of distributing heroin is reversed and remanded for a new trial.

I

In order to appreciate the issues raised on appeal, a full discussion both of the factual and the procedural underpinnings of this case is necessary.

The Factual Background

On September 13, 1977 two officers of the Puerto Rican police department, Jose Menendez and Jose Garcia, met with an informant named Rubio, at defendant-appellant Jose Castro's bar in Las Hoyas, Puerto Rico. At that meeting Agent Menendez, who was introduced to Castro by the informant, asked Castro for help in locating a good heroin connection in Chicago. Defendant said he could be of assistance, and gave Menendez a slip of paper on which defendant had written "Johnny El Loco, 1036 California Street, Chicago, Illinois." Two days later, on September 15, 1977, Agent Menendez, Agent Garcia, and the informant went to the Chicken and Pizza Palace in Ponce, Puerto Rico, where they met Carlos Ramos, the stepson of defendant. Ramos offered to take the agents to Chicago to locate a heroin connection. He said that first, however, he would obtain the connection's telephone number from his stepfather, the defendant, and would call El Loco to find out if there was any heroin for sale. The following morning the same four men met at Rubio's home. There Ramos related the substance of his telephone call to Chicago: two kilos of heroin were available for purchase, but the agents would have to travel to Chicago to discuss personally the sale with the connection. Agent Menendez told Ramos that he (Menendez) would discuss the matter with his money man and get back in touch with Ramos.

On September 19, 1977 Ramos and Agent Menendez met, at which time Ramos instructed Agent Menendez to buy him (Ramos) an airplane ticket to Chicago, where Ramos lived. The following day Agent Menendez, Rubio, and defendant met at defendant's bar where he was told about the agent's plan to travel with Ramos to Chicago; Castro told the agent "to be cautious and take it slow." On September 26, 1977, defendant arrived at the San Juan International Airport with his stepson Ramos, Ramos' wife, and her brother. Agent Menendez and Ramos went to the airport bar for a drink, and Agent Menendez told Ramos that when they arrived in Chicago he would introduce his money man to Ramos and, in turn, Ramos should introduce his source, Johnny El Loco, to the money man. Castro then joined the men at the bar, instructing them not to let the "Mexican" know that defendant was unable to travel because he was still on probation from a prior conviction. Agent Menendez, Ramos, and his family then departed for Chicago.

Upon their arrival, Agent Menendez and Ramos went to the Grand Plaza Hotel in Rosemont, Illinois. In the hotel bar, Ramos was introduced to Agent Amador, a Puerto Rican police officer, as Agent Menendez' money man. The men agreed that El Loco and Agent Amador would be introduced to each other the next day. That plan, however, never materialized. The following day Ramos told the undercover agents that he had not been able to contact El Loco. In hopes of locating the source themselves, Ramos and Agent Menendez went to the California Street address which Castro had given to Menendez at their first meeting on September 13, 1977. The address was the "La Muralla" bar. There the agent and Ramos inquired without success about El Loco. Consequently, Menendez and Ramos returned to the agents' hotel and Ramos told both Agent Menendez and Agent Amador that he would continue searching for El Loco. Having heard no word from Ramos and becoming impatient, the agents went to Ramos' home that evening. He was not there; however, the agents talked with an unidentified woman in the building who called Ramos from her apartment. Ramos told Agent Menendez that he still could not find El Loco, but that if he did he would contact him.

The following morning, September 28, 1977, Agent Menendez met Ramos at his home in Chicago. Having abandoned his efforts to locate El Loco, Ramos told Menendez that he had found another source named "Alejo," who had one kilo of heroin available for immediate delivery. It was arranged that Ramos, Alejo, and the two agents, Menendez and Amador, would meet later that evening. At that time, Ramos and the brother of Alejo, who called himself "Acapulco Joe," met with the agents at their hotel. Acapulco Joe requested $30,000 for the kilo "in front"; Agent Amador refused the demand. The following day, September 29, 1977, Agent Menendez telephoned Acapulco Joe, who told the agent that when his brother Alejo returned, he would be ready to deliver the heroin. Following a series of phone calls between the agents and Ramos, and Ramos and Acapulco Joe, the delivery was arranged for that day at Ramos' home. Pursuant to the arrangement, Agents Menendez and Amador purchased the kilo of heroin from Alejo and his brother for $30,000.

Two days later, October 1, 1977, the same agents met with Ramos at the Star Cafe in Chicago. 1 The agents requested Ramos to locate the "Mexican" in Chicago for an additional purchase of heroin five or ten kilos. 2 Once the contact was made, they said, Ramos was to call the agents in Puerto Rico and they again would return to Chicago to purchase the drugs. Ramos agreed with the plan, stating that the supplier, Marcial Perez, was then vacationing and that he (Ramos) and the defendant had dealt with Perez on previous occasions. The following day the agents, prior to leaving Chicago, met with Ramos and repeated their intent to return to Chicago with the money when Ramos had made the connection with the "Mexican," Perez.

On October 11, 1977 Ramos telephoned Agent Menendez in Puerto Rico and told him that the "Mexican" had two kilos of heroin and was expecting two more. Because the agent was interested in a larger amount, he told Ramos they had better wait for the second amount. Agent Menendez then visited Castro at his bar. He related to the defendant the problems he and Officer Amador had encountered in Chicago trying to locate both El Loco and the Mexican and that neither of the men had been found. Castro commented that he had experienced problems in the past with his stepson's handling of drug transactions, at which time Menendez asked Castro to go to Chicago with him. The defendant replied that he would first have to obtain permission to travel.

On October 19, 1977 Agent Menendez, the informant Rubio, and defendant met at Castro's bar. At that meeting Menendez requested Castro to contact his stepson in Chicago and to inquire whether Ramos had located the Mexican. The agent again attempted to persuade Castro to personally handle the transaction in Chicago; the defendant said he would let Agent Menendez know during the following week whether he could get permission to travel to Chicago because of his legal restrictions. The two men arranged to meet again. On October 28, 1977, Castro, after stating that he could not travel to Chicago, told Agent Menendez that he would call Ramos and tell him to arrange a purchase of five or ten kilos of heroin so that the agent could fly to Chicago to buy it. Agent Menendez then told Castro that, following his return from Chicago, the agent would contact Castro about future drug transactions; the defendant agreed.

On November 1, 1977 Agents Menendez and Amador flew to Chicago and, upon their arrival, obtained Government funds in the amount of $150,000 in cash. With a special agent posed as the taxi driver, the two agents took a cab to Ramos' residence, where Agent Menendez informed Ramos that Agent Amador was ready, with cash, to make the purchase. Ramos, after talking with Amador and having seen the money, told the agents that the Mexican was waiting for them in Aurora, Illinois. Ramos and Agent Menendez then rode in the taxi to a Burger King restaurant in Aurora, where they met Perez, the Mexican. The men planned that Perez would give five kilos of heroin to Agent Menendez, who would deliver the purchase to Agent Amador, and that Ramos would pick up the money and return to Aurora to pay Perez. The three men then went to the residence of Perez, where he gave Agent Menendez a shopping bag containing ten packages of heroin. When Menendez left Perez's home, Ramos and Perez were arrested.

The Procedural Background

On the basis of the events summarized above, two indictments were brought approximately three weeks apart from each other by the Government against the defendant Jose Castro. One indictment (hereafter "the first indictment"), brought on February 2, 1978, charged Castro with conspiracy to distribute heroin in violation of 21 U.S.C. § 846, and distribution of approximately five kilograms of heroin in Aurora, Illinois on November 1, 1977 in violation of 21 U.S.C. § 841(a)(1). The conspiracy count covered the period from September 1977 through February 1978 (when the indictment was returned) and alleged that on those dates Castro conspired with Perez, Ramos, Salvadore Urbina-Acosta, and other persons who were unknown to the grand jury. On July 28, 1978 following a jury trial, Castro, the sole defendant, was found not guilty both on the conspiracy count and the substantive count.

A second trial, where Castro again was the only defendant and which is the subject of this appeal, resulted...

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