U.S. v. Chalarca, s. 1942

• Decision Date: 12 September 1996
• Docket Number: D,2085,Nos. 1942,s. 1942
• Citation: 95 F.3d 239
• Parties: UNITED STATES of America, Appellant-Cross-Appellee, v. Mario CHALARCA, Defendant-Appellee-Cross-Appellant. ockets 96-1171, 96-1200.
• Court: U.S. Court of Appeals — Second Circuit

Page 239

95 F.3d 239

UNITED STATES of America, Appellant-Cross-Appellee, v. Mario CHALARCA, Defendant-Appellee-Cross-Appellant.

Nos. 1942, 2085, Dockets 96-1171, 96-1200.

United States Court of Appeals Second Circuit.

Sept. 12, 1996.

Daniel C. Becker, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Guy Petrillo, Assistant United States Attorney, of counsel), for Appellant-Cross-Appellee.

Alan E. Kudisch, Kew Gardens, NY, for Defendant-Appellee-Cross-Appellant.

Before: MESKILL and MINER, Circuit Judges, and SCULLIN, District Judge. ^*

MINER, Circuit Judge:

Appellant-cross-appellee United States of America appeals from the sentence portion, and defendant-appellee-cross-appellant Mario Chalarca cross appeals from the conviction portion, of a judgment of conviction and sentence entered in the United States District Court for the Southern District of New York (Scheindlin, J.). Chalarca was convicted after a jury trial of conspiracy to distribute and possess with intent to distribute cocaine and sentenced principally to a term of imprisonment of thirteen months. The district court sentenced Chalarca in accordance with the relevant conduct Sentencing Guideline applicable to jointly undertaken criminal activity. On appeal, the government contends, as it did below, that the district court should have sentenced Chalarca in accordance with the relevant Guideline applicable to personally undertaken criminal activity. On his cross appeal, Chalarca contends that the district court erred in receiving in evidence, over his objection, an English-language transcript of a Spanish-language audiotape that had been enhanced by the government. For the reasons that follow, we affirm the judgment of the district court in all respects.

BACKGROUND

On September 20, 1994, a confidential informant ("CI") of the Drug Enforcement Administration ("DEA") engaged in the first of a series of telephone conversations with Pedro Sanchez. Sanchez had been identified by Alba Ortiz, who was arrested earlier, as the person to whom Ortiz had agreed to sell twelve kilograms of cocaine. In their conversation, the CI told Sanchez that he was working for Ortiz and that Ortiz had asked him to sell the cocaine to Sanchez. The CI and Sanchez agreed to meet, and did meet later that day, at a Wendy's restaurant, Queens Boulevard and 45th Street in the Borough of Queens, New York City.

At the meeting, Sanchez agreed to pay at least $60,000 up front for the cocaine, with the balance to be paid after he sold the drugs. He also told the CI that his cousin would receive the cocaine, and he suggested two alternative procedures for the transaction. His cousin would wait at the bus stop in front of Wendy's, the CI would pick up the cousin in a car, and the exchange of cash for cocaine would take place in the car; or, after the pickup at the bus stop, the cousin would escort the CI to a nearby apartment, where the exchange would take place. Sanchez described his cousin's appearance, and it was agreed that the transaction would be completed within the next day or two so that Sanchez would have time to raise the required funds.

On September 22, 1994, at about 12:15 p.m., Sanchez and the CI engaged in a telephone conversation in which Sanchez advised that he had $70,000 and was ready to conclude the drug transaction at 1:00 in the afternoon. As directed by DEA agents, the CI proposed that the exchange of cash for cocaine take place in the parking lot of the same Wendy's restaurant where the initial meeting was held. Sanchez refused this proposal, considering it to be too dangerous to conduct such a transaction in so public a place. He insisted that the CI pick up his cousin and proceed to the apartment mentioned in the earlier conversation. In another telephone call a few minutes later, it was agreed that Sanchez would show the CI his cash near Wendy's and that, after the cash was viewed, the exchange would take place at the nearby apartment.

At 11:56 a.m. on September 22nd, Chalarca had signed out of work at his place of employment in New Jersey, although he was scheduled to work until 2:30 p.m. Chalarca drove his jeep to the Wendy's restaurant in Queens, having picked up Sanchez somewhere along the way. He parked on a side street near the restaurant sometime before 1:30 p.m., and Sanchez entered the restaurant to meet the CI. Sanchez, who was related to Chalarca and referred to him as his "cousin," was waiting when the CI arrived. He told the CI that he had the $70,000, that his cousin was present, and that he had just told his cousin that the CI had changed the conditions for the exchange. Sanchez then led the CI out of the restaurant and across the parking lot to Chalarca's jeep, where Chalarca was sitting in the driver's seat.

Sanchez asked the CI to get into the jeep to view the money, but the CI declined. They then stood next to the open front passenger seat door and leaned into the vehicle. Sanchez asked Chalarca: "Where is the money?" Chalarca purportedly reached into the back seat, took out a small black bag and told the CI to "look at the bag." This statement by Chalarca was subject to some controversy at trial. The conversation during the transaction was conducted in Spanish and tape-recorded by the CI. On two occasions, the interpreter testified that Chalarca said: "that is the bag" or "esa la bolsa" in Spanish but later testified that what Chalarca said was: "look at the bag" or "vea la bolsa" in Spanish. The tape was enhanced by the government. In any event, Sanchez unzipped the bag and took out $70,000 in cash, which the CI counted in the presence of Chalarca and Sanchez.

As he counted the cash, the CI said, "I will go bring mine," apparently referring to the cocaine. Sanchez then told the CI, that "he," pointing at Chalarca, is "gonna get in with you." Sanchez also said that he was "not gonna do the deal there" and that he "need[ed] to see the work." After a further discussion, Sanchez and the CI walked toward Wendy's, leaving the cash in the jeep with Chalarca. The CI then gave the DEA agents posted in the area a pre-arranged signal, and the arrests were made. The agents found the $70,000 in $100 bills in the jeep.

Although Sanchez and Chalarca were arrested in the Borough of Queens, which is in the Eastern District of New York, they were indicted in the Southern District of New York. The indictment charged them with conspiracy to "distribute and possess with intent to distribute a controlled substance, to wit, five kilograms and more of cocaine, in violation of Title 21, United States Code, Sections 812, 841(a)(1), and 841(b)(1)(A)." According to the indictment, the conspiracy occurred "[f]rom in or about September, 1994 through up to and including on or about September 22, 1994, in the Southern District of New York and elsewhere." Various overt acts were alleged to have been committed in furtherance of the conspiracy, only one in the Southern District of New York: "On or about September 19, 1994, a co-conspirator not named as a defendant herein met with an undercover agent in the vicinity of 57th Street and Second Avenue in Manhattan."

Sanchez entered a plea of guilty to the indictment on May 16, 1995. Chalarca opted for a jury trial after entering a plea of not guilty. The trial began on June 6, 1995 and concluded on June 13, 1995, when the jury returned a verdict of guilty. At his sentencing hearing on February 13, 1996, the district court heard the testimony of Chalarca, the testimony of DEA Special Agent David McNamara, one of the arresting officers, and the arguments of counsel. On February 29, 1996, the district court issued an opinion holding that Chalarca's offense level was 12--a level corresponding to a drug quantity of less than 25 grams of cocaine. The court indicated that a sentence of incarceration within the applicable Guideline range of ten to 16 months would be imposed. The court rejected Chalarca's request for a downward departure based on less than minimal participation, extraordinary family circumstances and lack of proprietary interest in the narcotics or the money.

In its opinion of February 29th, the court noted that the government sought to hold Chalarca liable for the entire 12 kilograms under negotiation, which would call for a mandatory minimum sentence of ten years of imprisonment under 21 U.S.C. § 841(b)(1)(A) (more than five kilograms of cocaine). The court also noted that if Chalarca were found responsible for the amount of cocaine that could be purchased with the $70,000 found in the jeep, he would face a mandatory minimum sentence of five years of imprisonment in accordance with 21 U.S.C. § 841(b)(1)(B) (more than 500 grams of cocaine). The district court determined that Chalarca had no knowledge of any particular quantity of cocaine and that no particular quantity was foreseeable to him. Accordingly, the court fixed Chalarca's offense level at the level representing the least amount of cocaine that appears in the Drug Quantity Table in the Sentencing Guidelines.

In arriving at its conclusion, the district court applied the Sentencing Guideline applicable to jointly undertaken criminal activity, observing that the defendant was found guilty only of conspiracy. According to the Guidelines, a defendant's offense conduct is determined on the basis of the reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity. The court accepted Chalarca's contention that the 12 kilograms of cocaine that Sanchez was attempting to purchase were not foreseeable to him. The court also accepted Chalarca's contention that he could not foresee the amount of cocaine that could be purchased for $70,000. Sanchez had made some statements indicating that Chalarca knew nothing about the transaction with the CI, and the district court found that "[t]hese statements have the ring of truth." The...