U.S. v. Corral-Ibarra
| Decision Date | 23 May 1994 |
| Docket Number | CORRAL-IBARRA and R,91-3093,Nos. 91-3036,s. 91-3036 |
| Citation | 25 F.3d 430 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Franciscooberto Herrera, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David E. Risley (argued), Rodger A. Heaton, Asst. U.S. Atty., Office of the U.S. Atty., Springfield, IL, for U.S.
Elliott T. Price (argued), Chicago, IL, for Francisco Corral-Ibarra.
James E. Elmore (argued), Elmore & Reid, Springfield, IL, for Roberto Herrera.
Before CUMMINGS, ESCHBACH, and FLAUM, Circuit Judges.
A jury convicted Francisco Corral-Ibarra ("Corral-Ibarra") and Roberto Herrera ("Herrera") each of one count of conspiracy to distribute cocaine and one count of attempted possession with the intent to distribute cocaine. 21 U.S.C. Secs. 841(a)(1) and 846. Herrera appeals both his conviction and sentence, while Corral-Ibarra appeals only the latter. We affirm.
The events giving rise to appellants' drug convictions ironically have their genesis in the efforts of another drug dealer, James Timothy McEwen ("McEwen"), to get out of the cocaine business before he got caught and went to jail. At some point during his three-year stint as a cocaine dealer, McEwen made the acquaintance of John Castellanos ("Castellanos"), a Chicago cocaine dealer who soon became McEwen's primary source, selling him up to one kilogram at a time. By 1990, McEwen had decided to abandon his drug business because it was "out of control" and he feared prosecution. Nevertheless, Castellanos continued calling McEwen with offers to sell more cocaine. On June 6, 1990, McEwen finally went to the Illinois State Police, telling an agent of his long-term dealings with Castellanos and of Castellanos' recent offer to sell him a kilogram of cocaine. McEwen immediately entered into a cooperation agreement with the federal Drug Enforcement Agency ("DEA"), the terms of which granted him immunity.
Later that day, with DEA's assistance, McEwen began taping his phone conversations with Castellanos. When McEwen inquired about the availability of one kilogram of cocaine, Castellanos complained about the low supply and high prices in Chicago. Castellanos then turned the tables on McEwen, asking if McEwen could arrange a large purchase from McEwen's Florida source. 1 After a series of conversations in which Castellanos expressed interest in obtaining 300 or more kilograms per week, McEwen scheduled a meeting between Castellanos and the Florida source for the following day at a hotel in Springfield, Illinois. Castellanos indicated that he would be accompanied by one of his "uncles".
The meeting took place as scheduled on June 7, with McEwen, Castellanos, Corral-Ibarra, and DEA Agent John Schaefer ("Schaefer"), posing as the Florida cocaine source, in attendance. Under the watchful ear and eye of the government's audio- and video-taping devices, the parties discussed the sale of large quantities of cocaine. Specifically, Castellanos acted as the translator for Corral-Ibarra in negotiating price, quantity, quality, credit terms, and delivery point. By the end of the day, Castellanos and Corral-Ibarra had agreed to purchase 50 kilograms of cocaine from Schaefer for $17,000 per kilogram, for a total of $850,000.
After the initial meeting, Schaefer dealt directly with Castellanos in finalizing the deal. Schaefer insisted on using a "show and show" method of exchange. Under this arrangement, Schaefer agreed to move the cocaine as far north as Quincy, Illinois, where an agent for Castellanos and Corral-Ibarra could view and test the cocaine. At the same time, Schaefer would send an agent to the Chicago area to view the money. If both parties were satisfied, Schaefer then would transport the cocaine to Chicago for the actual exchange. Castellanos agreed to this type of transaction, and initially indicated that he would travel to Quincy. Later, however, Castellanos informed Schaefer that a man named Roberto (who turned out to be defendant Roberto Herrera) would view the cocaine.
Castellanos and Schaefer later discussed Herrera's role in the transaction. Castellanos told Schaefer to Throughout the conversation, Castellanos emphasized time and again that Schaefer should only show Herrera a small amount of cocaine because "he'd freak on you" if he knew how many kilograms were involved. Castellanos also commented that Herrera is "the innocent type dude." Schaefer then expressed concern over Herrera's presence in Chicago when the entire delivery would be unloaded. Castellanos assured Schaefer that there was nothing to worry about because Herrera "doesn't know nothing."
In a later recorded telephone conversation, Castellanos again told Schaefer to show only two kilograms to Herrera. Schaefer expressed some concern that people on Castellanos' end of the deal might balk because their tester had examined only two kilograms, but after discussing the quality of the cocaine, Castellanos reiterated that there would be no need for Herrera to view more than two kilograms.
In final preparation for the transaction, Schaefer arranged for 50 kilograms of previously seized cocaine to be flown to Springfield on a DEA airplane, and then transported to a large houseboat, equipped with audio- and video-tape machinery, that was docked on the Mississippi River at Quincy. On June 15, Herrera flew to Quincy and checked into a local motel. Castellanos and Schaefer again spoke by telephone, at which time Castellanos told Schaefer the name of Herrera's hotel and his room number. Schaefer then reminded Castellanos that Herrera would be travelling to Chicago with the sellers after the "show and show" took place. The following exchange ensued CASTELLANOS: Yeah, but don't tell him anything about nothin'.
Later in the conversation, Schaefer confirmed, saying, "You just don't want, you only want him to see two." Castellanos replied, "Yeah, cause ya know, he'll, he'll freak out on ya man, he'll get scared."
Schaefer then met Herrera at the hotel and drove him to the dock area. As they boarded the boat, Herrera appeared nervous. Once on the boat, one of the waiting agents handed Herrera two kilogram packages of cocaine. Herrera told the agent to cut open the package. Initially, the agent declined (because of agency policy constraints), and informed Herrera that he would have to talk to Schaefer. The following exchange then took place:
Schaefer then gave permission to cut open a package. Herrera had no knife, so Agent Rick Miller handed Herrera his knife. When Herrera experienced difficulty opening the package, however, Miller took back the knife and cut the package open. Herrera dabbed his finger in the package and, after placing some of the cocaine on his tongue, nodded his head in approval, saying, "You can call him."
Herrera and Schaefer then left the houseboat to find a pay telephone which Herrera used to page Castellanos. When Castellanos returned the page, Herrera spoke to him in Spanish, which Schaefer did not understand. Herrera then handed the receiver to Schaefer. Castellanos again reminded Schaefer not to show Herrera the entire load of cocaine because Herrera "would freak if he saw them all." Schaefer informed Castellanos that Herrera had seen just two kilograms. Schaefer also told Castellanos that a sellers' representative (who turned out to be DEA Agent Humberto Flores ("Flores")) would be contacting Castellanos soon to view the money.
Schaefer and Herrera then returned to the houseboat. While the sellers ostensibly waited for instructions to proceed to Chicago with the drugs, Agent Miller engaged Herrera in the following conversation:
Meanwhile, Flores met with Castellanos and Corral-Ibarra in a hotel room (also amply equipped with tape machinery) in Schiller Park, Illinois. Corral-Ibarra informed Flores that he had only been able to raise $500,000, and Castellanos suggested that the sellers provide an initial 30 kilograms with the balance to be paid for and delivered in a few days. When Flores asked to see the money, Castellanos and Corral-Ibarra took a large wastebasket down to their car and returned with $481,115 in United States currency. After Flores saw the money, Castellanos and Corral-Ibarra were arrested by awaiting agents.
Herrera then was arrested on the houseboat. He waived his Miranda rights and spoke with the agents. He said that Castellanos had hired him...
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