U.S. v. Garcia

• Decision Date: 20 March 2019
• Docket Number: No. 18-1735,18-1735
• Citation: 919 F.3d 489
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andres GARCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

919 F.3d 489

UNITED STATES of America, Plaintiff-Appellee,

v.Andres GARCIA, Defendant-Appellant.

No. 18-1735

United States Court of Appeals, Seventh Circuit.

Argued November 28, 2018

Decided March 20, 2019

David E. Bindi, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Andrea Elizabeth Gambino, Attorney, Gambino & Associates, Chicago, IL, for Defendant-Appellant.

Before Rovner, Hamilton, and Brennan, Circuit Judges.

Hamilton, Circuit Judge.

A jury found defendant-appellant Andres Garcia guilty of distributing cocaine—actually distributing a kilogram of the stuff—to co-defendant Alan Cisneros in violation of 21 US.C. § 841. The government offered no direct evidence that Garcia possessed or controlled cocaine, drug paraphernalia, large quantities of cash, or other unexplained wealth. There was no admission of drug trafficking by Garcia, nor any testimony from witnesses (undercover agents, criminal confederates, innocent bystanders, or surveillance officers) that Garcia distributed cocaine. Instead, the government secured this verdict based upon a federal agent’s opinion testimony purporting to interpret several cryptic intercepted phone calls between Garcia and Cisneros, a known drug dealer.

This case illustrates the role trial judges have in guarding the requirement of proof beyond a reasonable doubt in criminal cases. It also reminds us of the connection between the roles that judges play in criminal cases, requiring proof beyond a reasonable doubt, and in civil cases, where motions for summary judgment and for judgment as a matter of law require judges to evaluate the outer limits of reasonable inferences under the lower civil standard of proof by a preponderance of the evidence. See generally Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 252–53, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (comparing civil summary judgment standards to criminal standard discussed in Jackson v. Virginia , 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). If the evidence would not allow a civil case to survive a motion for summary judgment or a directed verdict, then the case has no business being given to a jury in a criminal trial.

We assume the government’s circumstantial evidence here might have supported a search warrant or perhaps a wiretap on Garcia’s telephone. It simply was not sufficient to support a verdict of guilty beyond a reasonable doubt for distributing cocaine. We reverse the district court’s decisions denying Garcia’s motions for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 and reverse his convictions for insufficient evidence.

I. Factual and Procedural Background

A. The Investigation of Cisneros and his Conversations with Garcia

Beginning in 2010, federal and state agents spent two years investigating an Illinois-based drug trafficking organization headed by Alan Cisneros, who, along with most of his co-conspirators, was affiliated with the Latin Kings street gang. The evidence against Cisneros included seizures of cocaine and cash used in drug deals, controlled buys made by both a confidential informant and an undercover agent, video footage from a camera concealed near Cisneros’ two residences, live surveillance of his residences, consensually recorded telephone conversations, and judicially authorized wiretaps on three of Cisneros’ telephones. The agents built a strong case against Cisneros. He ultimately pleaded guilty to possessing 500 grams or more of cocaine with intent to distribute. United States v. Cisneros , 846 F.3d 972, 974 (7th Cir. 2017).

Garcia appeared on stage for only a few days at the end of the Cisneros investigation. Between April 17 and April 20, 2012, agents recorded eight brief conversations between Cisneros and Garcia on one of Cisneros’ wiretapped telephones. Garcia and Cisneros had several cryptic exchanges, punctuated by Garcia’s two brief in-person visits with Cisneros. These conversations, as interpreted at trial by an ATF agent testifying as an expert witness, formed the basis for Garcia’s conviction. Garcia did not contest that he was the person speaking with Cisneros on the calls, and the government and Garcia stipulated to the accuracy of the English translations of the Spanish conversations. We review them in detail, for their content was the entire case against Garcia.

The first recorded conversation took place on the evening of Tuesday, April 17, 2012. After exchanging pleasantries, Garcia asked Cisneros if he was "all set to work" and, if so, "around how much [did he] count on over there?" Cisneros responded, "yes," and "Like, two-four, something like that." Garcia replied, "That’s not a problem ... I’ll go over there later." About an hour later, after a brief call verifying Cisneros’ location, a surveillance camera showed a person entering one of Cisneros’ residences who was "a little shorter" with "longer hair"—descriptors that matched Garcia. That same person left Cisneros’ residence a "few minutes" later, along with another person whom agents never identified.

The next afternoon, on Wednesday, April 18, 2012, Garcia and Cisneros again spoke on the phone. Cisneros queried, "Hey, by any chance ... did you see the girl yesterday or not?" Garcia demurred, "Noooo ... why?" Cisneros explained, "because I went to the bar afterwards," and "she’s really ugly ... She scared me a little bit." Garcia expressed skepticism, "I took a little taste, I mean, you know? And everything, and she was ... fine, you know?" Cisneros insisted, "every time I go to that bar, well, she’s ... really hot," but "now she was a bit fat and ... a bit ugly." Garcia conceded that he would "check around and [he’d] call [Cisneros] right back" and "see what he says."

A few hours later, Garcia told Cisneros that he had "talk[ed] to these guys right now" and "it was the ... the last of what they had," and "that everything came the same way[.]" But if Cisneros "can work that one," then "they will help us out with it, with something, they will give us a discount." Cisneros remained unpersuaded, insisting that "she’s too fat, like really ... really worn out." In fact, "she looks as if ... she had already been ... worked at two or three bars." Garcia pushed back, noting that "I even told your brother like I ... I grabbed some ... And she did give a kick[.]" But, Garcia conceded, "let me give them another call right now and, so I’ll see what they tell me."

Garcia reported back a few minutes later that he "spoke with them," and they wanted Cisneros to "work with her." Garcia had been told that "they already threw the tix forward," but "for the next one, he says that he could throw it to you for twenty-seven[.]" Cisneros objected that, "even if the next one were at twenty-five ... if you do the math, no.... Let’s say at around seventy, or, or sixty. Seventy ... eighty ... around there.... [I]t’s not even worth the bad reputation, to tell you the truth ... Why get a bad reputation with, with people?" Garcia replied, "So then let me, so let me tell this guy it would be better not to and ... and to try with that one or to cook this one and we’ll just wait and until he gets the rest."

Again, a few minutes later, Garcia was back in touch with Cisneros reporting that "the tix have already walked more that, that way." Garcia explained that if Cisneros could "hold on to it for about two or so days," then "he can change it for you." Garcia repeated that he was told, "Tell him to hold on to it there and so while we get um, uh, the, the rest and then we’ll, we’ll, we’ll exchange it for him." Cisneros wanted to know, "By when, more or less[?]" Garcia replied, "by Friday," and "we’ll give you another one within two days for sure."

These conversations sounded suspicious, understandably, to the agents monitoring Cisneros’ telephones. Thinking that a delivery of drugs could be imminent, agents positioned themselves near Cisneros’ two residences to conduct surveillance in person on the evening of Friday, April 20, 2012.

Garcia called Cisneros that evening to say he would "be right there so I can talk with you." Agents observed Garcia pull up in a gray Audi and walk to the front porch of one of Cisneros’ residences. The agents did not notice Garcia carry anything to the residence. A few minutes later, Garcia and Cisneros got into the Audi, drove down the street, and entered another of Cisneros’ residences. Agents still did not see Garcia carrying anything. After about fifteen minutes, Garcia left Cisneros’ residence—again apparently without carrying anything—and drove away in the Audi with agents following him.

While Garcia was still driving, Cisneros and Garcia had another phone conversation. Garcia reported: "The little bit that I put on my tongue, it looks like it’s, it’s good, man, you know?" Garcia told Cisneros, "you test it," or "like casually, just tell one of those guys who are around, give a taste to someone around there to find out." Cisneros replied that he was "also the same right now." Garcia laughed, and said, "Yeah, right? Yes, so then, I said, ‘Wow, what the!’ ... So what if I had put a good, uh, handful there." Garcia told Cisneros that they would "be in touch. If there’s anything, call me."

The agents following Garcia’s car believed he had narcotics with him. They conducted a traffic stop as he was turning into the driveway of his house. The agents’ belief was not correct. The agents asked Garcia if they could search his car, and Garcia agreed. Although a narcotics-sniffing dog gave a positive indication that some sort of drug (legal or illegal) had been or was in the car, the agents found nothing of interest except two cellphones. They asked Garcia if they could look in the telephones, and again Garcia agreed. Checking the call log, they confirmed that Garcia had indeed been in contact with Cisneros.

The agents then asked Garcia’s family members if they could search the house. The family members agreed. The agents found nothing of interest—no drugs, no money,...