U.S. v. Contreras, 90-1221

• Decision Date: 19 July 1991
• Docket Number: No. 90-1221,90-1221
• Citation: 937 F.2d 1191
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose CONTRERAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1191

937 F.2d 1191

UNITED STATES of America, Plaintiff-Appellee, v. Jose CONTRERAS, Defendant-Appellant.

No. 90-1221.

United States Court of Appeals Seventh Circuit.

Argued April 8, 1991.

Decided July 19, 1991.

Lance C. Malina, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Div. and Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Jack P. Rimland, Stamos, Rimland, Halprin & Clark, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, and CUDAHY and EASTERBROOK, Circuit Judges.

BAUER, Chief Judge.

A jury found Appellant Jose Contreras guilty of one count of conspiracy to distribute cocaine and marijuana in violation of 21 U.S.C. Sec. 846. The district court entered judgment on this verdict and sentenced Contreras under the United States Sentencing Guidelines ("Guidelines") to 108 months of imprisonment, to be followed by four years of supervised release. In calculating Contreras' sentence, the district court enhanced Contreras' offense level by two points for obstruction of justice pursuant to Guidelines Sec. 3C1.1. In this appeal, Contreras challenges the district court's application of that Guidelines section. We affirm.

I

The facts here are undisputed. Contreras supplied cocaine and marijuana to Ada Rosa Vega ("Rosa"), Rosa's husband Javier Medina, Rosa's son Orlando Vega, and Roy Rodriguez (we will refer for convenience to these latter four as "Rosa & Co."). Rosa & Co. were charged with various narcotics offenses in the same original indictment as Contreras, and each pleaded guilty. The government thereafter sought and obtained a superseding indictment charging only Contreras. Contreras pleaded not guilty and went to trial. Rosa and Medina testified for the government at Contreras' trial. The government's other principal witness was Agent John Gamboa of the Bureau of Alcohol, Tobacco and Firearms.

Gamboa testified that in early 1988 he infiltrated this drug distribution outfit and began making purchases from Rosa & Co. As is common in these undercover operations, Gamboa's purchases started small, but soon grew much larger. The largest, and last, drug deal went down on May 13, 1988. After some haggling over price, Gamboa arranged to buy on that date one kilogram of cocaine for $21,500 and 25 pounds of marijuana for $800 per pound. Gamboa arranged the May 13th deal, as well as the smaller, preceding deals, with Rosa & Co. He as yet did not know that Contreras was their source.

On the evening of May 13th, Gamboa and another undercover agent met Rosa and Medina at Rosa's apartment. After a telephone call by Rosa to Contreras to verify her instructions, the group drove to an alley near Contreras' house. Once they got to the alley, Contreras took control of the deal. Contreras first conferred with Medina, and then Gamboa--who, unbeknownst to the conspirators, was wearing a body wire--met Contreras for the first time. Contreras introduced himself as "Tony," which, according to Contreras' own testimony as well as the testimony of Rosa and Medina, was Contreras' street name. In that tape-recorded conversation in the alley on May 13th, Contreras and Gamboa discussed the details of the deal, including who would go fetch the drugs from Contreras' brother-in-law's house, when the money would be transferred, etc.

As it turns out, Contreras did not complete the deal as arranged, because he spotted a "narc car" and feared he was being set up. By the time Gamboa had calmed Contreras' fears, night had fallen. Gamboa and the surveillance agents decided for safety reasons to call off the deal. Later that night, federal agents arrested Rosa and Medina in front of Contreras' house, and Contreras was pinched about one month later.

Along with Agent Gamboa's testimony, the jury also received the tape of the Gamboa-Contreras conversation and the English translation thereof. In their testimony, Rosa and Medina also described the events of May 13th, which descriptions dovetailed with the other evidence. Rosa and Medina added that they bought cocaine and marijuana from Contreras for other customers besides Gamboa.

After the government rested, Contreras took the stand in his own defense. Contreras told a markedly different tale about his relationship with Rosa and Medina and his activities on May 13th. Contreras testified that he was at his in-laws' house working on his brother's car when Medina drove up. He testified that the two of them went to a neighborhood tavern to have a beer, where they ran into Rosa. Shortly thereafter, Contreras returned to his in-laws', and he and Medina took his brother's car out for a test drive. The car checked out, so they returned it to Contreras' brother. Contreras' brother then drove Contreras and Medina back to Contreras' house, where they were met by Contreras' wife and Rosa. A few moments later, federal agents showed up and arrested Rosa and Medina--for what reason, Contreras did not know.

And that, according to Contreras, was what really happened on May 13th. As to Agent Gamboa, Contreras never met him:

Q [Defendant's Counsel]: Did you see Agent Gamboa [when your brother dropped you off at your house]?

A [Contreras]: No.

Q: Did you have any conversation with Agent Gamboa on that day?

A: No, sir.

Transcript of Trial Proceedings ("Trial Tr."), Vol. IV, p. 453. See also id. at 461. While on the stand, Contreras also denied ever selling cocaine or marijuana to Rosa or Medina. During cross-examination, Contreras repeated that he did not meet or see Agent Gamboa on May 13th:

Q [Cross-exam by the Government]: So it's your testimony that you didn't meet Agent Gamboa on May 13th, 1988?

A [Contreras]: No, I didn't meet him, ma'am.

Q: And it's your testimony that you did not negotiate with John Gamboa and Javier Medina for a drug transaction on that day?

A: No, at no time did I ever negotiate anything with either one of them.

Id. at 468-69.

Unpersuaded by these denials, the jury returned a verdict of guilty as charged. The district court denied Contreras' post-trial motion for a new trial and held a sentencing hearing on January 18, 1990. The presentence report recommended a two-level enhancement under Guidelines Sec. 3C1.1 for obstruction of justice, and the court agreed:

The defendant, I believe, should receive the two-point enhancement or increase as a result of the perjurious testimony that was given. I believe the jury found, upon evaluating the defendant's testimony, ... that the Government had proven the elements of the crime beyond a reasonable doubt.

[I]n evaluating the jury's determination, as well as independently evaluating the defendant's testimony, I find that the defendant was not truthful on the witness stand, and, consequently, the two-level enhancement should be allowed.

Transcript of Proceedings on January 18, 1990 ("Sent. Tr."), p. 4. See also id. at 11 (In response to Contreras' complaint about the enhancement under Sec. 3C1.1, the court stated, "[U]nder the circumstances of your case, I have to raise--or make the two-point raise, because I believe you testified untruthfully."). Based on its calculations, the court determined that the Guidelines range for Contreras was 108 to 135 months. The court chose to impose a sentence at the very bottom of that range. Contreras filed a timely appeal, raising the arguments discussed below.

II

Guidelines Sec. 3C1.1 provides: ¹ "If the defendant willfully impeded or obstructed or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase the offense level by 2 levels." Application Note 1, which spells out the kind of conduct that is the target of this guideline, includes at subsection (c) "testifying untruthfully or suborning untruthful testimony concerning a material fact ... during a preliminary or grand jury proceeding, trial, sentencing proceeding, or any other judicial proceeding." Application Note 2 directs courts to evaluate "suspect testimony and statements" in the light most favorable to the defendant when applying this guideline, and Note 3 explains, "This provision is not intended to punish a defendant for the exercise of a constitutional right. A defendant's denial of guilt is not a basis for application of this provision." The district court determined that the obstruction enhancement explicated in these provisions was warranted in this case. That determination will only be disturbed if "clear error" is shown. United States v. Jackson, 935 F.2d 832, 849 (7th Cir.1991); United States v. Osborne, 931 F.2d 1139, 1153 (7th Cir.1991).

In his first argument, Contreras attempts to do just that: establish that the application of Guidelines Sec. 3C1.1 in this case was clearly erroneous. This is so, argues Contreras, because his testimony contained no specific perjurious statement other than his simple denial of any wrongdoing, and such a denial cannot be the basis for enhancement under Application Note 3. True, a simple denial of guilt--as in pleading not guilty, or saying to an arresting officer, "I didn't do anything"--cannot be the basis for an obstruction enhancement under Sec. 3C1.1. See United States v. Fiala, 929 F.2d 285, 289-90 (7th Cir.1991) (defendant's statement to officer that he had nothing illegal in car was "denial of guilt" within meaning of Note 3); United States v. Acosta-Cazares, 878 F.2d 945, 953 (6th Cir.) (pleading not guilty is "denial of guilt" under Note 3), cert. denied, --- U.S. ----, 110 S.Ct. 255, 107 L.Ed.2d 204 (1989). But Contreras did more than that. Despite the perils of so doing, Contreras decided to take the stand and tell the jury a story. According to that story, Contreras could not have been the "Tony" captured on tape discussing the details of the drug deal on May 13th, because he never met Agent Gamboa on that day, and he never dealt drugs. The jury and the district court found Contreras' story to be...