U.S. v. Durrive

• Decision Date: 15 May 1990
• Docket Number: No. 89-1434,89-1434
• Citation: 902 F.2d 1221
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alexander DURRIVE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1221

902 F.2d 1221

UNITED STATES of America, Plaintiff-Appellee, v. Alexander DURRIVE, Defendant-Appellant.

No. 89-1434.

United States Court of Appeals Seventh Circuit.

Argued Sept. 21, 1989.

Decided May 15, 1990 ^*.

R. Jeffrey Wagner, Asst. U.S. Atty., Office of the U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Abraham Silverstein, Chicago, Ill., for defendant-appellant.

Before WOOD, Jr., EASTERBROOK, and RIPPLE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Alexander Durrive was indicted on two counts charging him with conspiring to distribute cocaine in violation of 21 U.S.C. Sec. 846, 21 U.S.C. Sec. 841(a)(1), and 18 U.S.C. Sec. 2; and use of a telephone to facilitate the distribution of cocaine in violation of 21 U.S.C. Sec. 843(b) and 18 U.S.C. Sec. 2. A jury convicted Durrive on both counts and the district court sentenced the defendant under the Sentencing Guidelines ("Guidelines"). The first issue on appeal is whether the government presented sufficient evidence at trial to support the jury's guilty verdict. The second issue is whether the district court properly enhanced Durrive's offense level under Guidelines Sec. 2D1.1(b)(1) by two levels because he possessed a firearm while committing the offense. We affirm.

I. FACTUAL BACKGROUND

In April 1987, Teresa Wielochowski traveled from Milwaukee, Wisconsin, to Miami, Florida, with Alberto and Linda Cabeza, two associates of Wielochowski's cocaine-distributing boyfriend, Fausto Zaffino. While in Miami, Wielochowski met Rene Rodriguez, a cocaine supplier for Zaffino. During the summer of 1987, Wielochowski saw Rodriguez during visits to New York and Miami. After Wielochowski's rendezvous with Rodriguez, Rodriguez would travel to Milwaukee to supply cocaine to Zaffino and the Cabezas. Rene Rodriguez introduced Wielochowski to a friend of his named "Alex" during one of Wielochowski's excursions to Miami.

In October 1987, federal authorities arrested Fausto Zaffino. Because Zaffino's cocaine distribution activities in Milwaukee ceased upon his arrest, Wielochowski had no contact with Rodriguez between the fall of 1987 and the late summer of 1988. In August 1988, Rodriguez repeatedly called Wielochowski on one of her two digital pagers. Wielochowski suspected that Rodriguez wished to perform an overture to a drug deal. Desiring to assist the arrested Zaffino, Wielochowski contacted the FBI and offered to cooperate in exchange for a possible reduction in Zaffino's sentence. On September 13, 1988, Wielochowski authorized the FBI to monitor and record her telephone conversations with Rodriguez.

In response to a page from Rodriguez, Wielochowski called Rodriguez on September 13 at a telephone number he used in Brownsville, Texas. Rodriguez informed Wielochowski that he intended to call his cocaine source immediately and would later travel to Miami to meet him. Telephone toll records indicated that directly after his conversation with Wielochowski, Rene Rodriguez called a Miami telephone number subscribed to under the name "Alex Rodriguez," 9310 Fountain Bleau Boulevard, Miami.

On September 22, 1988, Wielochowski called Rene Rodriguez at the Brownsville number to check on the progress of the drug deal. A woman who answered the phone told Wielochowski that Rene Rodriguez had gone to Florida and could be reached at telephone number (305) 551-9466, which was the number subscribed to under the name Alex Rodriguez.

Five days later, Wielochowski and FBI Special Agent David Shellenberger called Rene Rodriguez at the Miami number. Shellenberger represented that he was Wielochowski's timid but well-heeled partner. During the conversation, Rodriguez quoted Shellenberger a price of $18,000.00 per "watch" (a code word for a kilogram of cocaine). Agent Shellenberger and Wielochowski called the Miami number again later that day and spoke to both Rene Rodriguez and a man identifying himself as "Alex." Alex assured Shellenberger that he had "the merchandise" and encouraged Shellenberger to travel to Miami to examine it. In an attempt to allay Shellenberger's concern about being taken advantage of, Alex stated that Shellenberger could initially pay for half of the cocaine in Miami and then pay for the other half when it arrived in Milwaukee.

Later that afternoon, Shellenberger telephoned Alex from Milwaukee. Alex indicated that he was reluctant to send Rene Rodriguez to Milwaukee with three kilograms of cocaine without being paid first. Alex again cajoled Shellenberger to come to Miami to inspect the cocaine, and stated that "you're not gonna have to ... be scared because you're gonna be in my family's house with my two kids. I got two little babies and stuff, you know." After discussing prices with Rene Rodriguez, Shellenberger promised to call back when he decided whether he would travel to Miami.

Agent Shellenberger phoned the Miami number the following day and informed Alex that he was travelling to Miami on Friday, September 30, 1988, to meet with Rene Rodriguez and Alex. At 8:00 a.m. on Friday, September 30, 1988, Wielochowski called Miami and gave Rene Rodriguez the number and arrival time of the flight that Shellenberger was purportedly taking to Miami that day.

Approximately an hour and a half later, Agent Jeff Lang of the FBI's Miami office went to Apartment 305, 9310 Fountain Bleau Boulevard in Miami with a pair of arrest warrants. Agent Lang's entry into the apartment woke Rene Rodriguez from his slumber in the living room; Alex Durrive joined the pair from a rear bedroom. Durrive's girlfriend and his two children were also present. Durrive admitted that he lived in the apartment.

The agents discovered an envelope in plain view on a living room coffee table. The envelope was addressed to "Alex Durrive" at a Leisure City, Florida, address. Someone had written the flight information that Wielochowski had provided earlier that morning on the reverse side of the envelope. The agents seized numerous documents from Rene Rodriguez's wallet, including slips of paper bearing Wielochowski's beeper number, the names "Alex" and "Fausto," and the telephone number for Durrive's residence. In response to Agent Lang's query regarding the presence of weapons, Durrive directed the agent to a .357 magnum revolver in a closet. The arresting agents never conducted a full-scale search, and failed to discover any drugs in the apartment during the initial security search.

After reading him his Miranda rights, Agent Lang spoke with Alex Durrive for approximately three hours. Prior to Durrive's trial, Agent Lang listened to the recorded telephone conversations in which a man named "Alex" had participated. Lang testified at trial that he strongly believed that one of the voices on the tape belonged to Alex Durrive. While Wielochowski and Agent Shellenberger testified that they were unable to identify the voice on the tapes as being the same as Durrive's voice, the jury evidently found Agent Lang's testimony sufficient to support a finding that Alex Durrive was the "Alex" who participated in the drug negotiations.

At trial, the government introduced a pair of Florida driver's licenses into evidence as additional proof of a link between Rene Rodriguez and Alex Durrive. One license was for Alex Durrive at 15135 SW 305 Terrace, Leisure City, Florida, and the second license was for Rene Rodriguez at the same address.

II. SUFFICIENCY OF THE EVIDENCE

Durrive argued at trial and on appeal that while his association with conspirators may have been proved, his participation in the conspiracy was not. When evaluating a sufficiency of the evidence challenge, we " 'review all the evidence and all the reasonable inferences that can be drawn from the evidence in the light most favorable to the government.' " United States v. Nesbitt, 852 F.2d 1502, 1509 (7th Cir.1988) (quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984)), cert. denied, --- U.S. ----, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989); see also United States v. Herrero, 893 F.2d 1512, 1531 (7th Cir.1990). In reviewing the evidence against Durrive, we must determine whether any rational trier of fact could have concluded that he was guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Muehlbauer, 892 F.2d 664, 667 (7th Cir.1990); United States v. Grier, 866 F.2d 908, 922 (7th Cir.1989). We may overturn a verdict only when the record is devoid of any evidence, regardless of how it is weighed, from which a jury could find guilt beyond a reasonable doubt. Grier, 866 F.2d at 923; Nesbitt, 852 F.2d at 1509. We have defined a conspiracy as "a combination or confederation of two or more persons formed for the purpose of committing, by their joint efforts, a criminal act." United States v. Whaley, 830 F.2d 1469, 1473 (7th Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988); see also Muehlbauer, 892 F.2d at 667; United States v. Reed, 875 F.2d 107, 111 (7th Cir.1989). To sustain the charge of conspiracy to distribute cocaine, the government need only prove the existence of such a conspiracy and a participatory link with Durrive. United States v. Missick, 875 F.2d 1294, 1297 (7th Cir.1989); United States v. Abayomi, 820 F.2d 902, 905 (7th Cir.), cert. denied, 484 U.S. 866, 108 S.Ct. 189, 98 L.Ed.2d 142 (1987). A defendant's mere knowledge of, approval of, association with, or presence at a conspiracy is insufficient to establish the participation element. See United States v. Troop, 890 F.2d 1393, 1397 (7th Cir.1989); Abayomi, 820 F.2d at 906. In meeting its burden of proof, the government may use circumstantial evidence and, in fact, such evidence "may be the sole support for a conviction." Nesbitt, 852 F.2d at 1511; see Troop, 890 F.2d at 1397; Grier, 866 F.2d at 923.

In United States v. Martinez de Ortiz, 883 F.2d 515 (7th Cir.1989), Judge Easterbrook wrote a concurring...