U.S. v. Garcia

• Citation: 35 F.3d 1125
• Decision Date: 16 May 1994
• Docket Number: Nos. 93-1730,93-1754 and 93-2014,s. 93-1730
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rufino GARCIA, Miguel Vaca and Federico Rivera, Defendants-Appellants. . Argued *
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1125

35 F.3d 1125

UNITED STATES of America, Plaintiff-Appellee, v. Rufino GARCIA, Miguel Vaca and Federico Rivera, Defendants-Appellants.

Nos. 93-1730, 93-1754 and 93-2014.

United States Court of Appeals, Seventh Circuit.

Argued ^* May 16, 1994.

Decided Sept. 14, 1994.

Barry R. Elden, Asst. U.S. Atty., Lance Malina (argued), Crim. Receiving, Appellate Div., James B. Burns, Office of the U.S. Atty., Chicago, IL, for U.S.

Marilyn J. Martin, Chicago, IL, for Rufino Garcia.

Frank Wesolowski, Lisle, IL, for Miguel Vaca.

Terence MacCarthy, Federal Public Defender, Office of Federal Defender Program, Nicholas A. DeJohn, DeJohn & Associates, Domingo F. Vargas (argued), Chicago, IL, for Federico Rivera.

Before CUMMINGS, HILL, ^** and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

A federal grand jury charged Miguel Vaca, Rufino Garcia and Federico Rivera-Borciaga in a two-count indictment alleging possession with intent to distribute cocaine and a conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 841 and 846. Defendant Vaca entered a guilty plea to both counts of the indictment and was sentenced to 151 months of incarceration, fined $6,191 and ordered to serve a five-year term of supervised release. Defendant Garcia pled guilty to the conspiracy to distribute cocaine count and was sentenced to 120 months in prison followed by five years of supervised release. Defendant Rivera was found guilty by a jury of both counts in the indictment and sentenced by the court to serve 136 months in prison followed by five years of supervised release.

Defendant Rivera appeals his sentence, while counsel for defendants Garcia and Vaca have filed Anders briefs and seek to withdraw from representing their respective clients. We affirm the conviction of defendant Rivera and grant the motions of the respective defense counsel for Garcia and Vaca to withdraw as the attorneys of record. We dismiss Garcia and Vaca's appeals.

I. BACKGROUND

Carlos Gonzalez was an informant for The Drug Enforcement Agency ("DEA") assigned to the Chicago, Illinois area. On January 19, 1992, based on a tip received from another DEA informant, Gonzalez Telephone toll records reveal that the next day, January 20th, Vaca placed a call to C & R Auto, a garage located at 3359 S. Morgan in Chicago, Illinois, owned and operated by the defendant Federico Rivera. Although the conversation was not recorded, one of Rivera's employees testified at trial that Rivera "always answered [the phone]." Thus, at trial, the government argued the inference that Vaca conversed with Rivera. During the course of the day (January 20th), Vaca and Gonzalez spoke on the telephone several times. Early that evening, Vaca and co-defendant Rufino Garcia arrived at Gonzalez's place of work (the Oakley Body Shop in Chicago, Ill.) and Vaca gave Gonzalez a small sample of cocaine. ² At this time, Vaca told At 12:05 p.m. the following day, January 21st, Vaca (who was at his home) and Gonzalez spoke on the phone and Vaca said the deal would be at 4:00 p.m. but he still did not know how many kilos were for sale. Telephone toll records indicate that a one-minute call was placed from Vaca's residence to C & R Auto at 12:07 p.m., immediately after Vaca and Gonzalez hung up, (the content of this call is unknown as the only calls recorded were those to and from DEA informant Gonzalez). At 1:55 p.m., Vaca called Gonzalez and told him the deal would be for "the two little zeros" (which Gonzalez interpreted to mean eight kilograms). ³ At 3:16 p.m., Gonzalez called Vaca and said he was picking up the buyer (Agent Guiffre). Vaca responded that the transaction was to take place at 4:00 p.m. near 18th and Loomis street in Chicago, Illinois. Vaca said he would call back when he was ready. The telephone toll records reveal that at 3:25 p.m., immediately after they ended their call, Vaca placed a two-minute call to C & R Auto. After the call to C & R (Vaca presumably spoke to defendant Rivera since Rivera "always answers the phone"), at 3:27 p.m., Vaca placed another call to Gonzalez to tell him that only seven kilos would be available and not eight as originally stated.

phoned defendant Miguel Vaca and told him he was interested in purchasing cocaine. Gonzalez and Vaca met at a Chicago restaurant, Elias Tacos, later that day to discuss the possible drug transaction. Gonzalez was wired with a tape recorder and taped the conversation with Vaca. During their conversation, Vaca informed Gonzalez that the price was $20,000 per kilo of cocaine. Vaca also explained that he had recently driven a vehicle from California to Chicago, Illinois and transported cocaine. ¹ Gonzalez that the sale would take place either at the Oakley Body Shop or "over there in the garage" (presumably a reference to Rivera's body shop, C & R Auto). Later that evening, Gonzalez called Vaca and informed him that his (Gonzalez's) buyer (DEA Special Agent Mark Guiffre) liked the sample and they were ready to do the deal. At that time, Gonzalez inquired as to "how many cars" were for sale, i.e., how many kilograms of cocaine were for sale. Vaca advised Gonzalez he would call him back with the information. At about 8:30 p.m. on January 20th, telephone toll records reflect that a call was placed from Rivera's business, C & R Auto, to Gonzalez. This conversation was recorded and recounts Vaca (who was calling from C & R Auto) requesting to meet Gonzalez again to discuss the sale. Vaca, Garcia and Gonzalez in fact did meet at the corner of 18th and Carpenter in Chicago, Illinois, about fifteen minutes later Vaca informed Gonzalez that the drug sale could take place the next day (January 21st) and mentioned again that he recently transported the cocaine from California to Illinois.

At 4:20 p.m. Agent Guiffre, informant Gonzalez, defendant Vaca and defendant Garcia all met near Garcia's house at the intersection of 18th and Loomis in Chicago, Illinois, where Vaca counted Guiffre's money ($140,000). While Vaca was counting the money, he remarked that he had a "good connection" in California who supplied his cocaine. Agent Guiffre and Gonzalez then waited approximately two hours for the drugs to arrive and during this timeframe had the opportunity to observe Vaca place several calls from a nearby pay phone while defendant Garcia appeared to be acting as a lookout. Around 6:20 p.m., Vaca returned to Agent Guiffre's vehicle (a two-door Toyota) and stated that the cocaine had arrived. Vaca pointed to a light blue Ford Crown Victoria across the street. After defendant Rivera got out of the Ford Victoria, he walked around to the rear of the car (trunk) where he looked cautiously from side to side. At this time, Vaca exited Agent Guiffre's vehicle and walked over to meet Rivera. Rivera opened the trunk, removed a white five-gallon bucket and carried the white bucket back to Guiffre's vehicle. Rivera handed the bucket to Vaca who placed it on the floor of the passenger's side of the Toyota. Vaca entered the vehicle and closed the door leaving Rivera on the sidewalk.

Agent Guiffre testified that Vaca removed one kilo of cocaine labeled "la reina" ⁴ from the bucket and handed it to him. After the agent opened the package and determined

that it was cocaine, he gave the arrest signal to the surveillance team and as Vaca and Garcia were being arrested, Rivera fled the scene. About one hour and one-half after the drug bust, telephone toll records reveal that a call was made from C & R Auto to defendant Vaca's home. Thereafter, Agent Guiffre proceeded to C & R Auto where he located defendant Rivera in the passenger seat of a BMW driven by an unknown, young, hispanic male. The DEA agent followed the BMW several blocks and when the car stopped, Guiffre took Rivera into custody.

II. ISSUES

The defendant, Rivera, raises two issues on appeal: (1) the sufficiency of the evidence establishing his participation in the conspiracy and his possession with intent to distribute cocaine; and (2) whether the trial court erred in instructing the jury that statements of coconspirators may be used to infer that Rivera was a member of the conspiracy. ⁵ We must also determine whether the respective counsel for defendants Vaca and Garcia have satisfied the requirements under Anders to withdraw from appellate representation of their respective clients.

III. DISCUSSION

A.

Defendant Federico Rivera's first argument is that the evidence offered at trial was insufficient to prove beyond a reasonable doubt that he was guilty of the charged crimes.

1. Sufficiency of the Evidence

When considering a challenge to the sufficiency of the evidence, "[t]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Reversal of a conviction is warranted "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." United States v. Gutierrez, 978 F.2d 1463, 1468-69 (7th Cir.1992). "[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be ... to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 318, 99 S.Ct. at 2789-90.

2. Conspiracy Charge

Defendant Rivera's initial challenge is to the sufficiency of the evidence demonstrating his participation in a conspiracy to distribute cocaine. "When the sufficiency of the evidence to connect a particular defendant to a conspiracy is challenged on appeal, substantial evidence should be the test rather than slight evidence or slight connection." United States v. Olson, 978 F.2d 1472, 1479 (7th Cir.1992) (quoting United States v. Durrive, 902 F.2d 1221, 1228 (7th Cir.1990)). A conspiracy...