U.S. v. Gallardo
| Decision Date | 15 August 2007 |
| Docket Number | No. 06-1035.,No. 06-1143.,No. 05-2037.,05-2037.,06-1035.,06-1143. |
| Citation | 497 F.3d 727 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David GALLARDO, Ricardo Gallardo and Jorge Luna, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joseph C. Pedersen (argued), Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.
Richard H. Parsons, Jonathan E. Hawley, Johanna M. Christiansen (argued), Office of the Federal Public Defender, Peoria, IL, for Defendants-Appellans.
Before POSNER, MANION, and KANNE, Circuit Judges.
David Gallardo, his brother Ricardo Gallardo, and Jorge Luna were convicted of various offenses related to a cocaine and heroin distribution conspiracy. Together, and individually, they appeal numerous procedural, evidentiary, and sentencing issues. Finding no error in any of the Appellants' convictions or sentences, we affirm.
Michael Fricks was a Rockford, Illinois resident who law enforcement officers had identified as a drug dealer. From November 2003 until February 13, 2004, the Drug Enforcement Agency (DEA) had court authorization to intercept phone calls to and from Fricks's cell phone. From evidence gained through those interceptions, agents obtained an interception order for Ricardo's phone from February 2 until February 12, 2004. The DEA's investigation resulted in the arrest of Ricardo, David, Luna, Fricks, Jose Espinoza, and Jerry Wilson. Fricks, Espinoza, and Wilson cooperated with the government and testified at the Appellants' trial.
As part of the drug conspiracy, Espinoza and Ricardo purchased a number of vehicles from James Orsinger with drug trafficking proceeds. While Ricardo purchased the vehicles, Orsinger let him use nominees for the names actually appearing on the titles. Luna agreed to let Ricardo use his name for the title to a 2004 Volkswagen Touareg so that Espinoza and Ricardo could conceal their ownership. Espinoza and Ricardo provided the money for the loan payments on the car and as payment for the use of his name, they paid for a vacation for Luna to Las Vegas.
Espinoza and Ricardo bought the Touareg in order to transport drugs from Mexico to Rockford. They made arrangements with their associates in California to install a secret compartment in the car and asked Luna to drive the car to California for them. Luna agreed; he drove the Touareg to California and flew back to Illinois.
At trial, Espinoza testified that he and Ricardo began selling small quantities of cocaine together in 2000. Initially, they sold as little as one ounce of cocaine at a time, but they quickly ramped up their sales to quarter-kilogram increments. After a short stint in prison, Espinoza returned to Rockford in April 2003, and he and Ricardo began obtaining their cocaine from an organization run by Larry Mendoza. Espinoza and Ricardo used a truck with a hidden compartment to transport the cocaine. Mendoza, or his associate Tobias Wamsley, would drive the truck to Rockford and deliver the cocaine to either Espinoza or Ricardo. Espinoza or Ricardo would then drive the truck to the home of Connie Gesswein, a woman who agreed to let Espinoza and Ricardo store their drugs in her house if they paid her rent. After selling the cocaine, Espinoza or Ricardo would then use the truck to bring Mendoza his money. Mendoza's organization fronted Espinoza and Ricardo between ten and thirty kilograms of cocaine on between ten and twelve occasions from April 2002 to February 12, 2004.
Rather than selling the cocaine directly to consumers, Espinoza and Ricardo moved the drugs down the distribution chain by fronting them to Fricks, Wilson, and several other individuals. Once these individuals sold the cocaine, they would make payment to either Espinoza, Ricardo, or Ricardo's brother David. Fricks testified at trial that he began obtaining cocaine from Ricardo in early 2002. Between February 2002 and February 13, 2004, Fricks obtained approximately 150 kilograms of cocaine from Ricardo, Espinoza, and David.
Wilson testified that he obtained cocaine from Ricardo between October 2000 and the end of 2001 or the beginning of 2002. He began with quarter-kilogram transactions, but incrementally moved up to full kilogram transactions. Starting in late 2001 Wilson purchased his cocaine from Fricks but began obtaining it directly from Ricardo again in November 2003. Between November 2003 and his arrest on February 12, 2004, Wilson received approximately forty-five to fifty kilograms of cocaine from Ricardo, Espinoza, and David.
On February 12, 2004, Wilson told Ricardo that he had money for him. David went to Wilson's home and retrieved the $15,000 payment. Wilson then talked to Ricardo and told him that he needed two kilograms of cocaine. Ricardo called David and instructed him to get two of the big bags from Gesswein's and take them to Wilson. Officers watched David retrieve the drugs and drive them to Wilson's apartment in a vehicle registered to Luna.
Later that day, Espinoza and David were together in Espinoza's car when they received a call from Ricardo. Ricardo told them that he was about to be arrested and that they should go to Gesswein's house. Espinoza and David drove to Gesswein's house and picked up six kilograms of cocaine, one kilogram of heroin, and $59,594 in cash. They began to drive to Chicago but were quickly stopped by police and arrested. At the time of their arrest, Espinoza and David were in possession of the garage door opener to Gesswein's house, the garage door opener to Ricardo's house, and a box containing exactly $15,000. At the time that Ricardo was arrested, he was in possession of a cell phone which had been broken in two pieces. That same cell phone had called Espinoza's phone three times between 5:10 p.m. and 6:51 p.m. that day.
Ricardo was charged in Count One with conspiring to possess with the intent to distribute and conspiring to distribute five or more kilograms of cocaine and one kilogram or more of heroin between October 2000 and February 12, 2004 in violation of 21 U.S.C. § 846, in Count Two with distributing over 500 grams of cocaine on February 12, 2004 in violation of 21 U.S.C. § 841(a)(1), in Count Three with possessing with the intent to distribute more than five kilograms of cocaine and more than 100 grams of heroin on February 12, 2004 in violation of § 841(a)(1), and in Counts Five through Twelve with money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B) and 1957.
The jury returned guilty verdicts against Ricardo on Counts One, Two, Three, Nine, Ten, Eleven, and Twelve. The district court sentenced Ricardo to 360 months' imprisonment, five years' supervised release, and a $500 fine.
Luna was charged in Count One with aiding and abetting the conspiracy, and in Counts Eleven and Twelve with money laundering. The jury returned guilty verdicts against Luna on Counts Eleven and Twelve. The district court sentenced Luna to thirty-three months' imprisonment, three years' supervised release, and a $250 fine.
David was charged in Count One with conspiring to possess with the intent to distribute and conspiring to distribute five or more kilograms of cocaine and one kilogram or more of heroin between October 2000 and February 12, 2004, in Count Two with distributing over 500 grams of cocaine on February 12, 2004, and in Count Three with possessing with the intent to distribute more than five kilograms of cocaine and more than 100 grams of heroin on February 12, 2004.
David pled guilty to Counts One, Two, and Three without a written plea agreement. The district court sentenced him to eighty-seven months' imprisonment, three years' supervised release, a $150 fine, and a $300 special assessment.
Ricardo and Luna, together, raise the following issues: (1) whether the district court erred by barring questioning and evidence regarding the prior drug use of witnesses and the effect drug use could have on their memory; and (2) whether the district court erred by denying the defendant's request to inspect extraneous papers in a juror's possession. Luna raises the issue of whether sufficient evidence was presented to support his convictions. Ricardo raises the following issues: (1) whether the district court improperly allowed evidence of prior bad acts under FED.R.EVID. 404(b); (2) whether the district court improperly allowed an in-court identification of Ricardo by Wamsley; and (3) whether the district court erred in either its calculation of the appropriate Sentencing Guideline range or in arriving at a reasonable sentence. David raises the issue of whether the district court erred by failing to grant him a downward sentencing adjustment for playing only a minor role in the offense pursuant to U.S.S.G. § 3B1.2(b).
At trial, Ricardo sought to offer expert testimony that the past use of cocaine, marijuana and ecstasy by government witnesses would have an adverse effect on their ability to remember the events to which they testified. The government filed a motion in limine to bar Ricardo's expert. The district court explained that defense counsel could only ask the government witnesses whether they were presently addicted to drugs and whether they were addicted to drugs any time between 2000 and 2004. The court reasoned that it was "within its discretion to refuse cross examination on the issue where memory or mental capacity is not legitimately at issue and the evidence is offered solely as a general character attack." Tr. p. 383. The district court relied on this court's opinion in United States v. Mojica to find that defense counsel had offered no basis for finding that the witnesses' memory was legitimately at issue. 185 F.3d 780, 788 (7th Cir.1999). Thus, more extensive cross examination on the subject was prohibited.
The district court also informed defense counsel that they could present extrinsic evidence...
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