U.S. v. Dominguez

• Decision Date: 15 June 1993
• Docket Number: No. 92-2363,92-2363
• Citation: 992 F.2d 678
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raul DOMINGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 678

992 F.2d 678

UNITED STATES of America, Plaintiff-Appellee, v. Raul DOMINGUEZ, Defendant-Appellant.

No. 92-2363.

United States Court of Appeals,

Seventh Circuit.

Argued Dec. 17, 1992.

Decided April 27, 1993.

As Amended June 15, 1993.

R. Jeffrey Wagner, Asst. U.S. Atty., Milwaukee, WI (argued), for plaintiff-appellee.

Michael J. Lonski, Milwaukee, WI (argued), for defendant-appellant.

Before POSNER, FLAUM, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

A jury convicted Raul Dominguez of one count of conspiracy to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. section 846, section 841(a)(1), and 18 U.S.C. section 2. At sentencing, the district court judge made an independent determination that Dominguez had perjured himself at trial and enhanced his base offense level two points for an obstruction of justice. U.S.S.G. § 3C1.1. On appeal, Dominguez challenges both his conviction and his sentence. We affirm.

I.

With the help of government informant Cesar Garcia, the United States Drug Enforcement Administration ("DEA") negotiated with Jackie Dominguez, sister of Raul Dominguez, to purchase 300 kilograms of cocaine. Tr. 5. Over the course of several months and approximately ten telephone conversations, DEA agent Ray Melick arranged for the delivery of a one kilogram "sample" of cocaine as a prelude to the larger deal. Tr. 19-20. On January 11, 1991, the one kilogram sample was delivered in Guatemala City, Guatemala by co-conspirator Jose Galvan to DEA agent Janet Turnbull. Simultaneously, Agent Melick met an individual known as Raphael, allegedly Raul Dominguez, at the Milwaukee airport to transfer $12,000 as payment for the Guatemalan sample. This Milwaukee meeting was tape recorded and the recordings were admitted as evidence.

During the meeting, Agent Melick became concerned that the substance delivered was not cocaine and refused to pay until he could verify its authenticity. Tr. 31-32. The concern arose because the substance delivered to Agent Turnbull was packaged in several smaller packages as opposed to a single brick, and because a non-cocaine powder was found on the packages. Tr. 32, 35. After engaging in several phone conversations with Galvan in Guatemala City and with Jackie Dominguez in California, Melick concluded that the substance was cocaine and transferred the $12,000 payment. Tr. 34, 39. Recordings of these conversations were also entered into evidence.

After this transaction, negotiations continued. In August of 1991, government informant Garcia met with Jorge Andres, Jackie Dominguez's co-conspirator, and with Raul Dominguez in California. Tr. 8, 43-44. Garcia testified that Dominguez acknowledged meeting Agent Melick at the Milwaukee airport and stated that he did not want to do business with him again because he believed Melick was a cop. Tr. 7-8, 10. Garcia testified that the multiple kilogram deal never transpired and that aside from the one kilogram in Guatemala no cocaine was purchased or seized in connection with the charged conspiracy. Tr. 15-16. Agent Melick corroborated Garcia's testimony. Tr. 42-44, 55.

Raul Dominguez categorically denied being involved in any conspiracy or being in Milwaukee on January 11, 1991. Tr. 81. Testifying in his own defense, Dominguez claimed that he was not the man identified as Raphael, whom the jury heard on the tapes of the Milwaukee transaction. Tr. 86. However, after listening to the recordings and assessing the credibility of the witnesses, the jury rejected the misidentification defense, and found Dominguez guilty of conspiring to distribute cocaine.

II.

On appeal, Dominguez challenges his conviction on the ground that the district court erred in admitting hearsay evidence to establish the identity of the substance delivered as cocaine. Over defense counsel's objection, the district court admitted testimony from Agent Turnbull that she had learned that "the Guatemalan police had the packages tested and they were found to contain cocaine." Tr. 62. In general, the district court is given broad discretion in determining the admissibility of evidence. Accordingly, challenges to evidentiary determinations are reviewed for a clear abuse of this discretion. United States v. Rodriguez, 925 F.2d 1049, 1053 (7th Cir.1991); United States v. L'Allier, 838 F.2d 234, 242 (7th Cir.1988). The testimony offered by Agent Turnbull was clearly hearsay, as it was a statement, other than one made by the declarant while testifying at trial, offered to prove that the substance received was in fact cocaine. Fed.R.Evid. 801(c). There being no applicable hearsay exception, it was an abuse of discretion to admit this evidence.

The admission of the hearsay testimony does not constitute reversible error, however, "if we determine that the error had no substantial influence on the verdict." United States v. Cherry, 938 F.2d 748, 757 (7th Cir.1991); United States v. Grier, 866 F.2d 908, 920 (7th Cir.1989); FED.R.CRIM.P. 52(a) ("Any error ... which does not affect substantial rights shall be disregarded."). Only if it can be said " 'with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error,' can we conclude that the error was harmless." United States v. Manganellis, 864 F.2d 528, 539 (7th Cir.1988) (quoting Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1247-48, 90 L.Ed. 1557 (1946)). Thus, where other untainted incriminating evidence is overwhelming, the error is deemed harmless. Id.

Dominguez argues that admission of the hearsay evidence prejudiced his defense by precluding an alternative theory of defense and thus was not harmless error. Specifically, he contends that prior to the admission of Agent Turnbull's hearsay testimony there was insufficient evidence from which a rational jury could conclude beyond a reasonable doubt that the substance delivered in Guatemala was cocaine and that allowing this testimony eliminated any doubt that the conspiracy involved actual cocaine. Agent Turnbull's hearsay testimony was the only direct evidence offered to prove that the packages received in Guatemala City contained cocaine. No cocaine obtained from the conspiracy was received into evidence, nor was there any testimony regarding a chemical analysis of the substance delivered in Guatemala.

It is well established that the government need not prove the identity of a controlled substance by direct evidence, as long as the available circumstantial evidence establishes its identity beyond a reasonable doubt. Manganellis, 864 F.2d at 541; see also United States v. Blanton, 884 F.2d 973, 977 (7th Cir.1989); United States v. Murray, 753 F.2d 612, 615 (7th Cir.1985). Circumstantial evidence establishing identification may include a sales price consistent with that of cocaine; the covert nature of the sale; on-the-scene remarks by a conspirator identifying the substance as a drug; lay-experience based on familiarity through prior use, trading, or law enforcement; and behavior characteristic of drug sales. Manganellis, 864 F.2d at 541.

In the instant case, the record is unclear as to what Agent Melick considered which eventually convinced him that the delivered substance was cocaine. Review of the telephone conversations held between Melick and Jackie Dominguez or Galvan fail to reveal a factual basis to support Agent Melick's belief. Additionally, there is no evidence that Agent Turnbull, who accepted the delivery in Guatemala, was experienced in identifying cocaine. In fact Agent Melick became concerned precisely because Agent Turnbull was uncertain whether the substance she received was authentic. The other circumstantial evidence relied on by the government (an agreed upon price of $12,000, consistent with the price for one kilogram of cocaine in Guatemala and the covert manner in which the transaction was conducted, with delivery in Guatemala and payment in Milwaukee) could as easily support the existence of a sham drug sale as an authentic drug sale. More importantly, those arrangements were made by the undercover agent, and thus are not necessarily indicative of the conspirators' intent.

This evidence is distinguishable from those cases in which the identity of the substance was established by circumstantial evidence. See Manganellis, 864 F.2d at 541 (co-conspirator's testimony that she knew drug received from defendant was cocaine because defendant told her it was and because she tried it); Murray, 753 F.2d at 615 (testimony by co-conspirators that they had smoked marijuana for five to ten years, and that the substance they received from the defendant to sell looked, smelled and smoked like marijuana); United States v. Roman, 728 F.2d 846, 859 (7th Cir.), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984) (same). The only substantial evidence identifying the substance was the direct evidence allowed in through improper hearsay. In the absence of the inadmissible hearsay evidence, the prosecution failed to establish the identity of the substance as cocaine.

The government's failure to prove the identity of the substance underlying a drug conviction, particularly involving an undercover "controlled buy," creates a significant problem. It casts doubt on an essential element of the crime, the defendant's intent to sell narcotics. The risk of mistaken conclusions is much greater than in cases where there has been merely a break in the chain of custody. See generally United States v. Lott, 854 F.2d 244, 250 (7th Cir.1988) (discrepancies in the chain of custody go to the weight of the evidence rather than the admissibility); L'Allier, 838 F.2d at 242 (same). Without any objective basis to prove criminal intent, such as proof of the illegal substance, admission of the hearsay evidence might have had a substantial influence on the verdict, and thus would not be harmless error.

The error is...