U.S.A. v. Contreras, 00-2229

• Decision Date: 25 April 2001
• Docket Number: No. 00-2229,00-2229
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ELISEO CONTRERAS, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 595

249 F.3d 595 (7th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ELISEO CONTRERAS, Defendant-Appellant.

No. 00-2229

In the United States Court of Appeals For the Seventh Circuit

ARGUED SEPTEMBER 21, 2000

DECIDED APRIL 25, 2001

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 99 CR 26--Rudy Lozano, Judge.

Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge.

A jury convicted Eliseo Contreras on charges that he conspired with others to possess cocaine with the intent to distribute the narcotic, see 21 U.S.C. sec. 846, and that he possessed cocaine with the intent to distribute on five separate occasions, see 21 U.S.C. sec. 841(a)(1). Judge Lozano ordered him to serve a prison term of 200 months. Contreras contends on appeal that the record does not support the inference that he conspired with one or more other individuals in pursuit of his drug trafficking. With that contention we agree, and consequently we will vacate his conviction on the conspiracy charge. Contreras also argues that the drug quantity for which the district court held him to account at sentencing lacks the support of reliable evidence. That argument we do not find persuasive, and so we shall affirm his sentence as modified to reflect the vacation of his conspiracy conviction.

I.

On four occasions in the Fall of 1997-- September 29, October 15, November 6, and November 14--Contreras distributed cocaine to a paid confidential informant, Roberto Nunez. Nunez was working with East Chicago, Indiana police officer David Zamora, who was assigned to a high intensity drug trafficking task force of the U.S. Drug Enforcement Administration. These four transactions would become the basis for Counts Two through Five of the indictment against Contreras, which charged him with the possession of cocaine with the intent to distribute.

Contreras distributed cocaine to Nunez on two additional dates during this same time period--October 24 and October 28. According to Nunez, each of these transactions involved a third person. On October 24, Zamora dropped Nunez near El Sombrero bar, where Nunez had previously purchased cocaine from Contreras. On this occasion, he intended to purchase one ounce of cocaine. When he discovered that Contreras was not present at the bar, Nunez asked another man he knew to be involved in drug trafficking, Mike Villanueva, to call Contreras. Villanueva obliged him, left the bar, and later returned with an ounce of cocaine he said he had obtained from Contreras. On October 28, Nunez returned to El Sombrero, again with the intent to purchase an ounce of cocaine from Contreras; again Contreras was not present. Nunez testified that he asked a man by the name of Luis Manuel Eulloqui, known to him as "Triste," to get in touch with Contreras. Triste subsequently left the bar, walked to Contreras' residence, and returned to the bar with the cocaine that Nunez wanted.

Zamora's testimony regarding these two transactions differed from Nunez's in certain important respects. Zamora testified that after Nunez entered the bar on October 24, Nunez contacted him to report that someone in the bar had contacted Contreras, and that Triste would be leaving the bar to retrieve the cocaine from Contreras. Zamora and fellow surveillance agents subsequently observed Triste leave El Sombrero, walk to Contreras' apartment (five to six blocks away from the bar), enter, exit, walk back to the bar, and meet with Nunez. As for the October 28 transaction, surveillance agents, consistent with Nunez's version, did see Triste leave the bar, walk to Contreras' residence, and go inside. But according to Zamora, Triste never came out. Instead Nunez contacted Zamora and explained that Contreras wanted Nunez to come to his apartment. Nunez subsequently walked to the apartment and picked up the cocaine.

Based on the evidence obtained as a result of these transactions, Zamora procured a search warrant for Contreras' apartment, which members of the task force executed on November 25. Agents discovered a total of 829.6 grams of cocaine in Contreras' freezer, along with $5,000 in cash. According to Zamora, who participated in the search, the packaging of the cocaine (in three separate quantities of roughly 275 grams each) was indicative of distribution. Contreras' possession of this cocaine formed the basis for Count Six of the indictment. Agents also recovered a digital scale from a kitchen cabinet and a .38 caliber handgun loaded with hollow-point ammunition from a dresser. Contreras was present when his apartment was searched and was placed under arrest. According to Zamora, after Contreras was advised of his rights, he admitted that an unidentified Hispanic individual had dropped off a kilogram of cocaine at his residence on ten separate occasions in the previous six months.

At the close of the government's case- in-chief and again at the close of all evidence, Contreras moved for a judgment of acquittal on all charges in the indictment, including the conspiracy charge set forth in Count One. The court denied these motions, and the jury convicted him on all counts.

In his pre-sentence report, the probation officer recommended that Contreras be sentenced based on a drug quantity of 11.2148 kilograms of cocaine. See United States Sentencing Guidelines sec. 1B1.3. That quantity included the 135.2 grams of cocaine that Contreras sold to Nunez on the four occasions referenced in Counts Two through Five of the indictment, the 829.6 grams of cocaine that was discovered in the search of Contreras' apartment on November 25, another 0.25 kilograms of cocaine corresponding to the $5,000 in cash (presumed to be drug proceeds) found in Nunez's freezer on the same date, and an additional ten kilograms which, according to Contreras' statement to Zamora, the unknown Hispanic male had distributed to Contreras in the months preceding his arrest.

Contreras objected to the inclusion of the ten kilograms, denying that he had ever made a statement to Zamora admitting receipt of this amount. In view of the objection, the district court took evidence as to the appropriate drug quantity. Zamora took the witness stand, and he again testified that Contreras had admitted receiving ten one-kilogram quantities of cocaine from the unidentified Hispanic male. But, Zamora now testified, Contreras said he had received these kilogram quantities at the rate of one per month over the ten months immediately preceding his arrest, not six months. Contreras himself testified at sentencing as well. According to Contreras, Zamora never asked him anything about the quantities of cocaine he had trafficked.

The district court credited Zamora's testimony, and thus concluded that the Hispanic male had supplied Contreras with ten kilograms of cocaine for distribution in the months preceding his arrest. The court found that Contreras had received three of these kilograms within the time frame of the conspiracy charged in the indictment--September through November 1997. Coupled with the other cocaine amounts involved in Counts Two through Six, this brought the drug quantity to roughly 3.9 kilograms. The court treated the remaining seven kilograms that Contreras received from the Hispanic male as relevant conduct. See U.S.S.G. sec. 1B1.3(2) & application note 9(B). Consequently, the court held Contreras to account for a total of 10.9 kilograms of cocaine.¹ The inclusion of the 10 additional kilograms had the effect of raising the base offense level from 26 to 32. Adjustments for possession of a gun in the course of a drug offense and obstruction of justice, see U.S.S.G. sec.sec. 2D1.1(b)(1), 3C1.1, produced a final offense level of 36, and a sentencing range of 188 to 235 months. The court ordered Contreras to serve a prison term of 200 months.

II.

A.

The conspiracy charge against Contreras required, inter alia, proof that he and at least one other person agreed to possess cocaine with the intent to distribute. E.g., United States v. Billops, 43 F.3d 281, 284 (7th Cir. 1994), cert. denied, 514 U.S. 1030, 115 S. Ct. 1389 (1995). Although the government need not always establish specifically with whom the defendant conspired, see United States v. Stephenson, 53 F.3d 836, 846 (7th Cir. 1995), citing United States v. Smith, 995 F.2d 662, 666 (7th Cir. 1993), cert. denied, 510 U.S. 1056, 114 S. Ct. 718 (1994), it must nonetheless establish that a conspiratorial agreement existed between the defendant and another individual, see United States v. Carraway, 108 F.3d 745, 750 (7th Cir.) (per curiam), cert. denied, 522 U.S. 891, 118 S. Ct. 228 (1997). The existence of that agreement may be proved circumstantially. See, e.g., id. As we discuss in greater detail below, the evidence in this case reveals that Contreras transacted illicit business with a number of different individuals, purchasing cocaine from one and selling cocaine to or through several others. At one time or another, the government has suggested that all of these individuals were participants in a conspiracy with Contreras. Contreras, on the other hand, contends that the evidence at most discloses a buyer-seller relationship with these persons. Of course, in order to establish a conspiracy, "[w]hat is necessary and sufficient is proof of an agreement to commit a crime other than the crime that consists of the sale itself." United States v. Lechuga, 994 F.2d 346, 347 (7th Cir.) (en banc) (plurality), cert. denied, 510 U.S. 982, 114 S. Ct. 482 (1993); see also, e.g., United States v. Clay, 37 F.3d 338, 341 (7th Cir. 1994).

In assessing whether the evidence supports the notion that the defendant conspired with another narcotics trafficker, "we are looking for evidence of 'a prolonged and actively pursued course of sales coupled with the seller's knowledge of and a shared stake in the buyer's illegal venture.'" United States v. Pearson, 113 F.3d...