U.S. v. Elizondo

• Decision Date: 19 December 1990
• Docket Number: 89-2633,89-2756 and 89-2888,89-2632,Nos. 89-2551,s. 89-2551
• Citation: 920 F.2d 1308
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victor ELIZONDO, Juan Carlos Colin, Valdemar Colin, Alejandro Rodriguez and Fernando Rodriguez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1308

920 F.2d 1308

UNITED STATES of America, Plaintiff-Appellee, v. Victor ELIZONDO, Juan Carlos Colin, Valdemar Colin Alejandro Rodriguez and Fernando Rodriguez Defendants-Appellants.

Nos. 89-2551, 89-2632, 89-2633, 89-2756 and 89-2888.

United States Court of Appeals Seventh Circuit.

Argued Sept. 11, 1990.

Decided Nov. 2, 1990.

Modified Dec. 19, 1990.

James L. Santelle, Matthew L. Jacobs, Stephen A. Ingraham, Asst. U.S. Attys., Milwaukee, Wis., for plaintiff-appellee.

Gerald M. Schwartz, Milwaukee, Wis., Richard P. Mesa, El Paso, Tex., for Victor Elizondo.

Bernard J. Panetta, II, Mary Stillinger, El Paso, Tex., for Juan C. Colin.

Stephen M. Glynn, Shellow, Shellow & Glynn, Milwaukee, Wis., Richard P. Mesa, El Paso, Tex., for Valdemar Colin.

Thomas G. Halloran, Milwaukee, Wis., for Alejandro Rodriguez.

Michael A. Clarke, Milwaukee, Wis., for Fernando Rodriguez.

Fernando Rodriguez, Milwaukee, Wis., pro se.

Before WOOD, Jr., POSNER, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Victor Elizondo, Juan Carlos Colin, Valdemar Colin, Alejandro Rodriguez, and Fernando Rodriguez were charged with conspiracy to distribute marijuana and possession with intent to distribute marijuana. After a jury trial, all defendants were convicted of conspiracy. All defendants except Alejandro Rodriguez were also convicted under one or more counts of possession with intent to distribute. Defendants jointly challenge these convictions on several grounds. First, they allege that improper prosecution questions prejudiced their right to a fair trial. Second, they allege that the trial judge's Pinkerton instruction was insufficient. Third, they allege that the trial judge erred in allowing the jury to consider evidence elicited by the prosecution in support of a dismissed count as to other counts. In addition, defendant Juan Carlos Colin challenges the sufficiency of the evidence supporting his convictions for conspiracy and possession with intent to distribute. Though we disapprove of certain prosecution conduct at trial and find one of the jury instructions to have been inadequate, we find the errors committed to be harmless and affirm all the convictions.

I. FACTUAL BACKGROUND

In May 1984, Arturo Garay was released on parole from a federal prison where he was serving a sentence for heroin possession. He moved to Milwaukee, where later that year he received a surprise visit from a former associate, defendant Valdemar Colin ("Valdemar"). Valdemar did not come empty handed: he gave Arturo Garay ("Arturo") approximately 120 pounds of marijuana to dispose of, in the hopes that the gift would improve Arturo's finances.

Valdemar's gift to Arturo was the first of five shipments of marijuana Valdemar, sometimes accompanied by his son Juan Carlos, brought north from Mexico. Valdemar's associates stored and distributed the marijuana in the Milwaukee area. These associates divide into two groups: first, Valdemar's co-defendants, and second, five unindicted coconspirators who testified for the government at trial: Arturo Garay, Alma Garay, Tom Koss, and Dennis and Diane Morgan.

A grand jury charged Valdemar Colin and his four co-defendants in a six count indictment: ¹ Count 1 alleged that all defendants had engaged in a conspiracy to possess with intent to distribute marijuana in violation of 18 U.S.C. Sec. 2, 21 U.S.C. Sec. 841(a)(1), and 21 U.S.C. Sec. 846; counts 2 through 6 alleged that individual defendants possessed marijuana with the intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1).

Each of the five substantive counts related to a specific shipment of marijuana transported by Valdemar to the Midwest and distributed in the Milwaukee area. Count 2 concerned the initial "gift" of marijuana made by Valdemar to Arturo. Arturo, in need of a place to store the 120 pounds of marijuana given him by Valdemar, contacted his brother-in-law, defendant Alejandro Rodriguez ("Alejandro"). Alejandro introduced Arturo to Tom Koss, who agreed to allow Arturo to store the marijuana in Koss's Milwaukee-area home.

Count 3 concerned Valdemar's next trip north, in March, 1985. ² On his way north, Valdemar telephoned Arturo and arranged a meeting in Joliet, Illinois. Arturo, accompanied by Alejandro Rodriguez's brother, defendant Fernando Rodriguez ("Fernando"), met Valdemar in Joliet and obtained the keys to a truck containing 300-400 pounds of marijuana. Arturo drove the truck back to Tom Koss's house, with Fernando, driving in another car, providing an escort. A few days later, Koss, acting on instructions from Alejandro, rented a truck, loaded it with the marijuana that had been stored in his garage, and left it in the parking lot of a Milwaukee shopping mall. Koss then surrendered the keys to this truck to Alejandro, who gave them to an unknown party who drove away in the truck after buying its illicit cargo.

The events surrounding Count 4 took place in April, 1985. Again, Valdemar arrived in the Midwest with a load of marijuana. He again tried to contact Arturo, and reached him through an intermediary, Alejandro. After relaying Valdemar's message to Arturo, Alejandro informed Tom Koss that his storage services would again be needed. Arturo, accompanied by his wife Alma, met Valdemar in a Bloomington, Illinois motel. Valdemar's son, defendant Juan Carlos Colin ("Juan Carlos") was also at the motel at the time Arturo and Valdemar met. On Arturo's instructions, Fernando and defendant Victor Elizondo ("Elizondo") also arrived in Bloomington. As in the facts supporting Count 3, Valdemar again transferred the marijuana by giving Arturo the keys to a vehicle loaded with the contraband crop. However, this time Elizondo rather than Arturo drove the load back to Milwaukee. He was escorted on this trip by Arturo and Fernando.

Count 5 concerned Valdemar's next trip north, in the late Spring of 1985. As he had done previously, Valdemar drove north from Mexico and made contact with Arturo upon reaching the Midwest. This time the meeting between Valdemar, accompanied by Juan Carlos, and Arturo, accompanied by Elizondo, took place in a motel in western Ohio. Juan Carlos and Elizondo departed for a storage facility where the marijuana was located, returning two hours later. Elizondo later told Arturo that during the two hours approximately 150 pounds of marijuana had been loaded into his car. Elizondo drove the car back to Milwaukee, escorted by Arturo.

Valdemar made no further shipments for approximately 18 months. During this period, Arturo separated from his wife Alma Garay and relocated to El Paso, Texas, in violation of the terms of his parole. Arturo was tried for that parole violation and in October, 1986 began serving a one-year prison term. Alma traveled to El Paso to see Arturo in October, 1986, and, while there, met Valdemar's wife Herlinda. Herlinda informed Alma that she and her son Juan Carlos would need Alma's help in trafficking marijuana.

A few months later, in December, 1986, Alma received a phone call from Valdemar instructing her to meet him at a motel in Bloomington, Illinois. The shipment that Valdemar brought to Bloomington at the time of this meeting forms the basis for Count 6 of the government's indictment. At the meeting, Valdemar asked to be introduced to Tom Koss. Alma and Valdemar drove north to Wisconsin to meet Koss and ascertain whether Koss would again allow his property to be used to store marijuana. Koss told Valdemar that his property was not suitable for storing the quantity of marijuana Valdemar had brought north, but that Valdemar might wish to use the farm of his sister and brother-in-law, Diane and Dennis Morgan. Valdemar, Alma, and Koss then met the Morgans. Having secured what he considered to be the Morgans' agreement to use their farm to store his marijuana, Valdemar departed, and arrived at the Morgans' farm early the following morning with a truck containing approximately 1,000 pounds of marijuana. Valdemar and Dennis Morgan unloaded this marijuana into the Morgans' granary.

For the next several days, through New Year's Eve 1986, Valdemar stayed at the Morgans' farm, where he was visited by Alma, Juan Carlos, and Tom Koss. During these visits, Tom Koss and Valdemar weighed and repackaged the marijuana into smaller amounts in preparation for sale. Alma served as translator during these meetings.

Late on New Year's Eve, 1986, Valdemar told the Morgans that he had just purchased a house in Milwaukee. A Milwaukee realtor testified that earlier that evening he had met Valdemar in connection with the purchase of residential property. Shortly after New Year's Day, 1987, Valdemar stopped spending nights at the Morgans' farm. However, he returned to the farm on occasion to unlock the granary where he stored the marijuana and provide marijuana to Tom Koss, who was distributing it to area buyers. In return, Koss made a number of payments to Valdemar in the presence of Alma and Juan Carlos, and one payment to Juan Carlos. Alma also paid Juan Carlos for marijuana she was distributing.

On February 2, 1987, Tom Koss was arrested after a search of his house revealed a small amount of marijuana and a large amount of cash. Koss's cooperation led police to Alma, who was arrested on February 6, 1987 while in possession of 30 pounds of marijuana. On the same day, police searching the granary at the Morgans' farm discovered over 500 pounds of marijuana. Tom Koss, Alma Garay, and the Morgans were granted immunity from prosecution in return for their testimony at trial. Arturo, then serving time for his parole violation, also agreed to cooperate with the government in exchange for immunity.

After a nine day trial, a jury convicted all defendants of conspiracy to distribute marijuana under Count 1 of the indictment. In addition, each individual defendant except Alejandro Rodriguez was convicted of one or more of the individual possession counts, as follows:

Valdemar Colin: guilty on Counts 2, 4, 5,...