U.S. v. Duran
| Decision Date | 10 May 2005 |
| Docket Number | No. 03-2506<SMALL><SUP>1</SUP></SMALL>.,03-2506<SMALL><SUP>1</SUP></SMALL>. |
| Citation | 407 F.3d 828 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Frank DURAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Thomas D. Shakeshaft (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Abner J. Mikva (argued), William Ferranti, Law Student, Chicago, IL, for Defendant-Appellant.
Before RIPPLE, KANNE and ROVNER, Circuit Judges.
In December of 2002, a superseding indictment charged Frank Duran, and several others, with violations of various federal narcotics and firearms statutes. These charges arose out of a drug-distribution conspiracy in Chicago.
Mr. Duran was tried before a jury and was found guilty of all charges against him, including conspiracy to possess with the intent to distribute a controlled substance, see 21 U.S.C. §§ 841(a)(1) & 846; possession with the intent to distribute a controlled substance, see 21 U.S.C. § 841; possession of a firearm, "namely, a Beretta 9 mm semiautomatic handgun," in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A); and use of a communications facility to facilitate the commission of a narcotics offense, see 21 U.S.C. § 843(b). Mr. Duran has appealed his conviction and his sentence. We held this case in abeyance pending the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons set forth in the following opinion, we now affirm the judgment of conviction. However, in light of Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621, and this court's decision in United States v. Paladino, 401 F.3d 471, 2005 WL 435430 (7th Cir. Feb.25, 2005), we order a limited remand of Mr. Duran's sentence.
In January of 2001, the Federal Bureau of Investigation ("FBI") began an investigation into a Chicago drug ring after an informant alerted the FBI that Mr. Duran and others were distributing narcotics. Through wiretaps, controlled buys and informants, the Government was able to obtain a great deal of evidence about the conspiracy.
Mr. Duran decided to go to trial. His brother, David Duran, however, decided to plead guilty and to testify against his brother. A number of Mr. Duran's other cohorts, including Beatriz Gamez, Mr. Duran's long-time, live-in girlfriend and the mother of his three children, as well as William Bertucci and Andrew DiPalma, also agreed to testify against Mr. Duran. At Mr. Duran's trial, the evidence consisted of recorded telephone conversations, testimony from law-enforcement agents, testimony from cooperating witnesses and physical evidence seized during searches following the arrests of the co-conspirators in 2001. The evidence was extensive, and we shall give only the broad outline.
Beginning no later than 1999 and continuing through 2001, David Duran obtained marijuana and cocaine from a number of drug suppliers, including Danny Galacia. These purchases from suppliers often were made on credit. David Duran's testimony and a recorded telephone conversation established that, at least on one occasion, Mr. Duran transported drugs and guns from Galacia's house in Texas to Chicago.
David would sell some of these drugs directly to his "own customers." David would also sell some to Mr. Duran and give some to Mr. Duran on credit, who dealt to his "own customers." David testified that either two to three times a week or a month, he would provide Mr. Duran with an eighth or a quarter kilo of cocaine so that Mr. Duran could service his customers. Also, "[w]hen it was in season," David would front Mr. Duran "on average" between "five and ten pounds" of marijuana "[m]aybe once or twice a week." Tr. at 551. Gamez, Mr. Duran's girlfriend, helped Mr. Duran service his customers. For example, once or twice a week in June and July of 2001, Gamez distributed drugs to Mr. Duran's customers. Also, Gamez testified, customers would come to their house to collect drugs and to make payments. Gamez testified regarding a journal she kept, in which she recorded the amounts owed to Mr. Duran by his customers. Gamez also would record when David took Mr. Duran's cocaine to cover a shortage for a customer. DiPalma, who was cooperating with the FBI, made two controlled buys from Mr. Duran.
Evidence established that the brothers also worked in tandem. DiPalma testified he was able "to call either David or Mr. Duran for the cocaine" and if one was not available, he would call the other. Tr. at 25; see also Tr. at 26 (). In addition, Mr. Duran also served as a drug delivery person for David. David testified that, at various times, Mr. Duran was delivering drugs "two to three times a week" for David for a fee; recorded telephone conversations regarding Mr. Duran's deliveries on behalf of David were introduced at trial. Tr. at 543. Bertucci, one of David's long-time customers, testified at trial that Mr. Duran delivered drugs to him on behalf of David on one occasion.
On June 4, 2001, David was stopped by Chicago Police Officer Walsh after Officer Walsh became aware that David was going to make a deal. Crack cocaine was found on the front seat of David's car, and David attempted to bribe Officer Walsh. As part of the investigation, Officer Walsh played along and ultimately got David to agree to give a cash bribe; the two met later and David paid the officer. In recorded telephone conversations between David and Mr. Duran introduced at trial, David told Mr. Duran about being stopped. He also told Mr. Duran that he needed to move drugs, and the two discussed utilizing a car that the police would not recognize. FBI Special Agent Melton testified about a different incident on June 19, 2001, when he stopped a truck that David was driving and found David with approximately $20,000 in cash. David told Agent Melton that he owned the truck but that "the license plate on the vehicle belonged to his brother, Frank." Tr. at 778-79.
There was also a significant amount of evidence introduced about the role of the "Bat Cave" or "Eagle's Nest," an apartment located at 3743 South Damen. This location was utilized to advance the distribution activities. Gamez testified this was "an apartment that [Frank Duran] and his brother used to rent ... to hold the drugs at." Tr. at 222. Gamez further testified that Mr. Duran would stay at the Bat Cave "a couple of time[s] a week or month" and explained that Mr. Duran told her that the brothers "needed to pretend that they lived there." Tr. at 298. Gamez testified she never went to this apartment and was not sure where it was. David testified that, among other purposes, this apartment was utilized to hide and store drugs and drug-dealing paraphernalia and to measure drugs. David specifically testified that Mr. Duran would leave him money in the apartment for drugs that David had given him. See Tr. at 554-55. David also testified that Mr. Duran had a key "[a]t times." Tr. at 555. When the police searched the Bat Cave, they uncovered cocaine, scales with white powder residue, a vitamin used to cut cocaine, a bulletproof vest, a flash suppressor and three weapons. One of the weapons that is particularly relevant to this appeal was a 9 mm semiautomatic pistol (the "Beretta") found in the pocket of a bathrobe hanging on the door in the apartment's bathroom. David testified that this weapon was his and that he kept it "[f]or protection." Tr. at 562. In addition to searching the Bat Cave, law enforcement searched Mr. Duran's house, David's house, where he lived with his girlfriend (1710 West Cermak), and David's sister's apartment, where David had stayed at different times. At these locations, they discovered drugs, drug-dealing paraphernalia and a number of other weapons and weapons accessories.
In January of 2003, Mr. Duran went to trial and was found guilty of all charges against him, including conspiracy to possess with the intent to distribute a controlled substance (Count 1), see 21 U.S.C. §§ 841(a)(1) & 846; possession with the intent to distribute a controlled substance (Counts 6 and 7), see 21 U.S.C. § 841; possession of a firearm, "namely, a Beretta 9mm semiautomatic handgun," in furtherance of a drug trafficking crime (Count 9), see 18 U.S.C. § 924(c)(1)(A); and use of a communications facility to facilitate the commission of a narcotics offense (Count 15), see 21 U.S.C. § 843(b).
Mr. Duran was sentenced to 262 months for Count 1, 240 months for Counts 6 and 7, and 8 months on Count 15, with the sentences to run concurrently. He also was sentenced to a consecutive 60-month sentence for Count 9.
Mr. Duran challenges various aspects of his conviction. These issues fall into four broad categories. We shall consider each in turn. Then we shall address Mr. Duran's challenge to his sentence.
Mr. Duran's first challenge is to the district court's admission of certain evidence. Our review of evidentiary decisions is limited. "We afford great deference to the trial court's determination of the admissibility of evidence because of the trial judge's first-hand exposure to the witnesses and the evidence as a whole, and because of the judge's familiarity with the case and ability to gauge the impact of the evidence in the context of the entire proceeding." United States v. Van Dreel, 155 F.3d 902, 905 (7th Cir.1998). This principle is reflected in our approach to appellate review of evidentiary submissions. If a timely objection at trial was made, we review the district court's ruling under...
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