U.S.A. v. Cruz-Velasco et al

• Decision Date: 17 August 2000
• Docket Number: 99-2424,Nos. 99-2382,s. 99-2382
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Raul Cruz-Velasco, Ramiro S. Trevino, and Joseph L. Cuevas, Defendants-Appellants. & 99-2425
• Court: U.S. Court of Appeals — Seventh Circuit

Page 654

224 F.3d 654 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Raul Cruz-Velasco, Ramiro S. Trevino, and Joseph L. Cuevas, Defendants-Appellants.

Nos. 99-2382, 99-2424 & 99-2425

In the United States Court of Appeals For the Seventh Circuit

Argued March 27, 2000

Decided August 17, 2000

Rehearing and Rehearing En Banc denied in No.99-2425 Sept. 13, 2000.

Appeals from the United States District Court for the Central District of Illinois, Urbana Division. No. 97-CR-20037--Michael P. McCuskey, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Flaum, Chief Judge, and Posner and Williams, Circuit Judges.

Flaum, Chief Judge.

The defendants, Raul Cruz- Velasco, Ramiro S. Trevino, and Joseph L. Cuevas, were each convicted of one count of conspiracy to distribute more than one kilogram of heroin in violation of 21 U.S.C. sec. 846 and sec. 841(b)(1)(A)(i) and one count of possession of more than one kilogram of heroin with intent to distribute in violation of 21 U.S.C. sec. 841(a)(1) and sec. 841(b)(1)(A)(i). The defendants now appeal, alleging various errors on the part of the district court. For the reasons stated herein, we affirm the defendants' convictions and sentences.

I. Background

The conduct for which the defendants were convicted and sentenced stems from two separate drug transactions. Those transactions occurred during the months of May and July of 1997.

1. The May Transaction

During May 1997, defendant Cruz-Velasco stored approximately five kilograms of heroin behind a bar owned by Daniel Chavez in Edinburg, Texas. At a meeting between Chavez, defendant Cruz-Velasco, defendant Trevino, and Polo Garza, a bartender who worked for Chavez, defendant Trevino told Chavez that he wanted the heroin moved to Dallas, Texas. Garza initially agreed to transport the drugs to Dallas, and defendant Cruz-Velasco stated that he would assist Garza by following him during the trip. Although defendant Trevino then proceeded to Dallas to await Garza's delivery, Garza never made the trip because he could not obtain access to a vehicle.

On May 16, 1997, defendant Trevino called Chavez from Dallas and inquired as to why Garza had not yet made the agreed-upon heroin delivery. Chavez stated that he did not know Garza's whereabouts and explained that it was his understanding that Garza was in Dallas. Subsequent to this telephone conversation, defendant Trevino visited Chavez at his bar and informed him that defendant Cruz-Velasco would pick up the heroin.

Shortly after defendant Cruz-Velasco picked up the heroin from Chavez, defendant Trevino again met with Chavez and told him that Jose Villanueva was willing to transport the heroin to Dallas. On May 19, 1997, defendant Trevino, defendant Cruz- Velasco, Chavez, and Villanueva met behind Chavez's bar. Defendant Cruz-Velasco brought the heroin with him to this meeting, and it was given to Villanueva in ten small packages. Villanueva then delivered the drugs to Dallas, arriving that same day.

When Villanueva arrived in Dallas, he met defendant Cruz-Velasco and defendant Trevino and the three men proceeded to a Dallas hotel. The next morning Villanueva gave the heroin to defendant Cruz-Velasco, who put the drugs in a white pickup truck and left. Villanueva was paid approximately $2,000 for this delivery.

On May 20, 1997, defendant Cuevas, Guizar, and Pablo Villamil flew from Chicago, Illinois to Dallas where they met defendant Cruz-Velasco. During this meeting, defendant Cruz-Velasco delivered the heroin in his possession to Villamil. Villamil then transported the heroin to Chicago on a Greyhound bus and, upon his arrival in Chicago, gave the heroin to an individual named Hector Castenada. Villamil received $8,500 for his services.

2. The July Transaction

In late June or early July 1997, defendant Trevino hired Villanueva to transport five kilograms of heroin from McAllen, Texas to Chicago. Villanueva received ten packages of heroin from defendant Cruz-Velasco and was instructed by defendant Trevino to travel to an area approximately eighty miles outside of Chicago. Villanueva left Texas on July 3, 1997 with the heroin hidden in his car.

When Villanueva arrived in Kankakee, Illinois on July 4, 1997, he was instructed to go to Room 310 at the Days Inn in Kankakee. While Villanueva was on his way to the Days Inn, he was stopped by a Kankakee County Sheriff's Department deputy. The deputy searched Villanueva's car and discovered one kilogram of heroin in a black duffel bag. Villanueva was arrested and taken to the Kankakee detention center.

Because of the quantity of drugs seized from Villanueva, the Kankakee County Sheriff's Department contacted the Kankakee Area Metropolitan Enforcement Group ("KAMEG"), a task force organized to investigate mid-to-upper level drug dealers. Members of KAMEG interviewed Villanueva, who informed them that there was an additional four kilograms of heroin hidden in his car. Villanueva also agreed to participate in a controlled sale.

After receiving instructions on the controlled sale, Villanueva went to Room 310 at the Days Inn where he met defendant Trevino and defendant Cruz-Velasco. After a brief conversation about the drug transaction that was to take place, Villanueva was instructed to drive to a Knights Inn in Kankakee and wait. Members of KAMEG followed Villanueva to the Knights Inn and gave him further instructions on the controlled sale.

Approximately five minutes after Villanueva left the Days Inn, members of KAMEG observed defendant Cuevas and Hector Castenada approach Room 310. Defendant Cuevas carried a medium-sized gym bag in his hand. When defendant Trevino answered the door of Room 310, defendant Cuevas and Castenada went inside. At approximately 2:17 p.m., law enforcement officials observed defendant Cruz- Velasco and Castenada leave Room 310. Neither man was carrying anything.

Defendant Cruz-Velasco and Castenada then proceeded to the Knights Inn, where they received a bag containing heroin from Villanueva. Following this exchange, defendant Cruz-Velasco got in Villanueva's car. Castenada drove away unaccompanied. Villanueva and defendant Cruz- Velasco then returned to the Days Inn, and defendant Cruz-Velasco commented that the delivery had been easy.

After exiting Villanueva's car, defendant Cruz- Velasco returned to Room 310 at the Days Inn. A few minutes later, defendant Cuevas left the Days Inn in a black Mercedes-Benz. He was followed by an unmarked police car. After several minutes in which defendant Cuevas exited the highway multiple times and appeared to be attempting to evade the undercover police officer who was following his car, a traffic stop was initiated by a uniformed officer and defendant Cuevas was arrested.

At the same time that defendant Cuevas was being followed, a sheriff's deputy stopped Castenada's vehicle and arrested him. Upon a search of Castenada's vehicle, five kilograms of heroin were discovered. Defendant Trevino and defendant Cruz-Velasco were then arrested at the Days Inn, and a search of the room revealed $22,510 in cash, as well as notes, articles of clothing, and a number of pagers. Defendant Cruz- Velasco, defendant Cuevas, defendant Trevino, and Castenada were all interviewed by KAMEG, but none of them admitted involvement in the drug trafficking of which they were suspected.

3. The Trial

The defendants were charged in a two-count superseding indictment with one count of conspiracy to possess with intent to distribute more than one kilogram of heroin and one count of possession of more than one kilogram of heroin with intent to distribute. After a jury trial, all three defendants were convicted on both counts. On May 21, 1999, the defendants were sentenced to 151 months imprisonment, a five-year period of supervised release, and a mandatory special assessment of $200. In addition, defendant Cuevas was fined $300,000. The defendants now appeal, arguing that the district court made various errors during both the guilt and sentencing phases of trial.

II. Analysis

The defendants' cases were consolidated both for purposes of trial and appeal. Although the various issues raised by each defendant overlap, they are not identical. We therefore consider each defendant's contentions separately. However, to the extent the defendants adopt the arguments made by their co-appellants, the analysis of the individual claims applies to all the appellants to whom those issues are applicable.

A. Defendant Ramiro S. Trevino

1. The Expert Testimony of DEA Agent Joseph Reagan

During the defendants' trial, the government called DEA Agent Joseph Reagan to the stand to testify as an expert witness about the nature, structure, and characteristics of drug trafficking operations. Defendant Trevino now argues that in admitting this testimony, the district court failed to apply the proper standard for the admission of expert testimony as enunciated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). We review whether the district court properly followed the Daubert framework in considering the admissibility of expert testimony de novo, see United States v. Hall, 165 F.3d 1095, 1101 (7th Cir. 1999), but we review the district court's decision to admit Agent Reagan's testimony for an abuse of discretion, see Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); United States v. Clark, 192 F.3d 750, 756 (7th Cir. 1999).

Rule 702 of the Federal Rules of Evidence provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to determine a fact in issue" an expert "may testify thereto." Fed.R.Evid. 702. The Supreme Court has made clear that in applying Rule 702, district courts serve a gatekeeping function and must ensure that the expert testimony at issue "both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597; see Kumho, 526 U.S. at...