U.S. v. Flores

• Decision Date: 23 September 1993
• Docket Number: 91-1854,92-2007,Nos. 91-1839,92-1203 and 92-1204,s. 91-1839
• Citation: 5 F.3d 1070
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Feilberto FLORES, Angel L. Fontanez and Amador Rodriguez, Defendants-Appellants. Feilberto FLORES, and Amador Rodriguez, Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1070

5 F.3d 1070

UNITED STATES of America, Plaintiff-Appellee, v. Feilberto FLORES, Angel L. Fontanez and Amador Rodriguez,

Defendants-Appellants.

Feilberto FLORES, and Amador Rodriguez, Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.

Nos. 91-1839, 91-1854, 92-2007, 92-1203 and 92-1204.

United States Court of Appeals,

Seventh Circuit.

Argued April 28, 1993.

Decided Sept. 23, 1993.

Patrick J. King, Jr., Sean B. Martin, Asst. U.S. Atty., Crim. Div., Barry R. Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Joseph D. Heyd, Chicago, IL, for U.S.

Allan A. Ackerman (argued), David J. Peilet, Chicago, IL, for Feilberto Flores.

Patrick A. Tuite, Brent D. Stratton (argued), Chicago, IL, for Angel L. Fontanez.

Allan A. Ackerman (argued), Glenn Seiden, Seiden & Associates, Chicago, IL, for Amador Rodriguez.

Before BAUER, Chief Judge, COFFEY, Circuit Judge, and EISELE, Senior District Judge. ¹

BAUER, Chief Judge.

Feilberto Flores, Angel L. Fontanez, and Amador Rodriguez ("defendants") are three forcibly retired entrepreneurs. Like many successful entrepreneurs, they ran a well-organized commercial enterprise and made a substantial profit. ² There was however, a difference in their business from the American norm. They applied their money-making skills to marketing, distributing, and selling an illegal product: cocaine, lots of cocaine. Eventually, Flores, Fontanez, and Rodriguez were forced into "retirement." All three were indicted, tried, and convicted of crimes. Flores was convicted of one count of conspiring to distribute cocaine, three counts of illegally using a communication facility to facilitate drug trafficking, and two counts of possession with the intent to distribute cocaine in violation of 21 U.S.C. Secs. 846, 843(b), and 841(a)(1) respectively. Fontanez was convicted of one count of conspiring to distribute drugs and two counts of possession with the intent to distribute drugs in violation of 21 U.S.C. Secs. 846 and 841(a). Finally, Rodriguez was convicted of conspiring to distribute cocaine in violation of 21 U.S.C. Sec. 846. Flores was sentenced to 364 months in prison, Fontanez was sentenced to 264 months, and Rodriguez was sentenced to life without parole. The district court also fined Flores and Rodriguez $25,000 each. In this consolidated appeal, all three challenge their convictions and sentences. Additionally, Flores and Rodriguez petition for relief pursuant to 28 U.S.C. Sec. 2255 ("section 2255") for alleged constitutional violations surrounding their convictions. We affirm their convictions and sentences, and deny Flores and Rodriguez section 2255 relief.

I. Facts

The facts of this case read like a poor take-off of a James Bond movie. This sordid tale includes such clever gadgets as hidden, electronically-controlled drug compartments custom-built into cars, beepers, mobile telephones, and hidden electronic transmitters and tape-recorders. Also a part of this criminal story were code words used to disguise references to narcotics during telephone conversations, and a stash apartment, a place that contained little else but a stockpile of narcotics and items used to package and distribute narcotics.

From the summer of 1988 until their arrests in October 1990, Flores and Rodriguez engaged in a cocaine operation that was responsible for moving at least 1500 kilograms of cocaine on the streets of Chicago. At their trials, cohort Carlos Cabral testified for the prosecution. Cabral's drug-dealing activities with Flores and Rodriguez stretched back to at least the summer of 1988. During those initial deals, Flores and Rodriguez each received multiple kilograms of cocaine from Cabral for which they paid him substantial amounts of money. Over the next two years, Flores and Rodriguez dealt drugs with Cabral hundreds of times. Eventually, their roles switched as Flores and Rodriguez began supplying drugs to Cabral who then would sell the drugs on their behalf.

By the summer of 1990, Fontanez had joined the operation. Cabral testified that Fontanez worked with Flores in dealing kilogram quantities of cocaine. Cabral said that he first saw Fontanez in the summer of 1990, when Fontanez accompanied Flores to a meeting with Cabral. Cabral stated that at this meeting he handed a kilogram of cocaine to Fontanez. Cabral also testified that Fontanez was present at drug transactions involving Flores or Rodriguez and Cabral on four or five occasions between the summer of 1990 and October 1990. In a meeting with Cabral in October 1990, Rodriguez described Fontanez as a "trusted worker" who had been working with Flores and him for a long time.

Cabral testified to eleven specific cocaine transactions by Flores, Fontanez, and Rodriguez during the three months preceding their arrest. Each delivery consisted of six to thirteen kilograms of cocaine. ³ Cabral would take the cocaine, sell what he could, then return any unsold amounts along with payment for the sold cocaine. On October 1, 1990, FBI agents picked up Cabral while he was trying to sell cocaine that he had received from Flores. Cabral told the FBI agents about his narcotics dealings with Flores, Fontanez, and Rodriguez and directed the agents to a hidden compartment in his car that contained four kilograms of cocaine. The agents also recovered $71,500 in cash from Cabral's car, and another $79,000 from Cabral's residence. The four kilograms of cocaine and the cash were on their way back to Flores.

Over the next few days, Cabral recorded telephone conversations with and led FBI agents to his cocaine customers. The FBI seized additional money and cocaine from those individuals. Cabral also had several tape-recorded conversations with Flores, and one with Rodriguez, regarding the distribution and sale of cocaine. During these conversations, which were played and explained to the juries, Flores and Rodriguez used code words to mask references to their illegal activities. For example, they referred to cocaine as "cars" and "roast pork." Flores made arrangements with Cabral for the return of the money and unsold cocaine (the same money and cocaine seized by the FBI at Cabral's arrest). Both Flores and Rodriguez talked to Cabral about the distribution of the next shipment of cocaine, which was to take place a few days later.

Flores and Cabral scheduled a meeting for the evening of October 4, 1990. Cabral reported to Flores that he had six "cars" to return to Flores. Flores set the meeting for 6:30 p.m. at a 7-11 store and explained that he was "waiting for my worker," which Cabral understood as Angel Fontanez.

To prepare Cabral for the meeting, FBI agents placed six kilograms of cocaine in the trunk of Cabral's car and placed two boxes full of paper strips (to pass for money that Cabral owed Flores for the other seven kilograms) in Cabral's back seat. The agents also provided Cabral with an electronic transmitter and a recording device so that they could monitor and record the meeting. Prior to Cabral's arrival at the 7-11, other FBI agents stationed in the area noticed two cars following each other very closely, a gray Lincoln and a tan Buick Riviera with dealer plates. The cars drove past the 7-11 and turned down a nearby alley. Earlier that day, the agents had spotted the same Lincoln at a car lot owned by Flores and at which Rodriguez worked.

When Cabral arrived at the 7-11, he did not see Flores, so he called him. Shortly after this call, Fontanez approached Cabral's car on foot and climbed into the front seat. Fontanez and Cabral had a brief conversation about the cocaine and money that Fontanez was to receive. Fontanez retrieved the boxes of fake money from the back seat while Cabral took out the six kilograms of cocaine from the trunk. Fontanez told Cabral that Flores had not allowed him to use a car to pick up the drugs and the money. Fontanez then took the packages in his arms, walked across the street, stopped briefly at a nearby bench, and rearranged his load before heading down an alley.

FBI agents followed Fontanez. FBI Special Agent Scott Jensen yelled to Fontanez as he was entering a second-floor apartment by way of a rear, exterior staircase. Jensen ran up the staircase in pursuit of Fontanez. When he reached the second floor landing, Jensen looked into the door of the apartment and spotted the packages containing the cocaine and fake money on the kitchen counter. Jensen called out to Fontanez and said that he wished to speak to him, at which point Jensen noticed a second person--Flores. Jensen then identified himself as an FBI agent, entered the apartment, and ordered Fontanez and Flores to get down on the floor.

After arresting Flores and Fontanez, the FBI agents conducted a protective sweep to make sure that no one else was in the apartment. With the area secured, the agents obtained and executed a search warrant for the apartment. In their search of the apartment, which had been rented by Fontanez since February 1990, the agents found the six kilograms of cocaine that Fontanez had just brought in with him, approximately 1.5 additional kilograms of cocaine, and 158.77 grams of heroin. In one of the bedrooms of the apartment, the agents found three packages of cocaine under the bed, two plastic baggies filled with cocaine underneath a small dresser, and an Ohaus triple-beam scale, the type of scale often used to weigh narcotics. In the dresser, the agents discovered a large stash of empty plastic baggies of the kind commonly used to package and distribute narcotics. They also found a handwritten note that contained numbers which indicated the conversion from grams to ounces. In the kitchen, the agents found more boxes of plastic baggies, the six kilograms of cocaine that Fontanez brought in with him, and no food, other than a bottle of champagne and half a wedding cake in the refrigerator. From the dining room table at which Flores had been sitting when Jensen first looked in the...