U.S. v. Gil, 78-2360

• Decision Date: 31 August 1979
• Docket Number: No. 78-2360,78-2360
• Citation: 604 F.2d 546
• Parties: 4 Fed. R. Evid. Serv. 1509 UNITED STATES of America, Plaintiff-Appellee, v. Guillermo GIL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 546

604 F.2d 546

4 Fed. R. Evid. Serv. 1509

UNITED STATES of America, Plaintiff-Appellee, v. Guillermo GIL, Defendant-Appellant.

No. 78-2360.

United States Court of Appeals Seventh Circuit.

Argued May 24, 1979.

Decided Aug. 31, 1979.

Gerald F. Murray, Chicago, Ill., for defendant-appellant.

Thomas P. Sullivan, U. S. Atty., Gerald J. Rafferty, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, Circuit Judge, PELL, Circuit Judge, and PECK, Senior Circuit Judge. ^*

PECK, Senior Circuit Judge.

Defendant-appellant Guillermo Gil was indicted along with his brother-in-law Oscar Villegas, and charged with distribution of heroin. The defendants were tried together in a bench trial, and Gil was found guilty. His codefendant Villegas was found not guilty by reason of entrapment on the part of the Government. The trial judge specifically relied upon several statements made by Villegas to the undercover investigators, implicating Gil, in finding Gil guilty. On appeal, Gil presents a sophisticated logical argument, urging that Villegas's statements were not properly admitted against him. Rule 801(d)(2) (E) excludes the statements of coconspirators from the general barrier against the use of hearsay, but the existence of a conspiracy is an obvious necessary precondition before the Rule comes into play. Gil contends that Villegas's entrapment acquittal made the existence of a conspiracy a legal impossibility, and thus the use of the evidentiary rule against him was improper.

The defendant Gil was the owner and operator of a sandwich truck, making rounds of the city in the early morning selling coffee and doughnuts, and then again at noon with sandwiches and drinks. According to the evidence, Villegas was approached repeatedly by a Government informant who attempted to persuade Villegas to sell him heroin. Finally, Villegas agreed to try to get some for the agent, and to meet him at a corner in Chicago, near Gil's home. The area was placed under surveillance, and Gil and Villegas were seen together in back of Gil's home. A short time later, Villegas met with the informer and told him to come back that night.

That evening, Gil and Villegas were observed together at a nearby shopping center. Villegas made several trips back and forth between Gil and the informant, who was waiting at the corner, and Gil was observed making telephone calls from a phone booth. A dispute arose between Villegas and the informant, however, and no sale occurred.

A week later, another transaction was set up between Villegas and the informant. That day, Gil returned home after making his rounds, parked his truck in the alley near his home, and began to clean the truck according to his usual routine. Villegas arrived, and began talking to Gil. A few minutes later the informant and an undercover agent arrived at a nearby corner. Villegas approached the agent, and began negotiations concerning the sale. When asked about the price of the narcotics, Villegas said he would have to ask his "partner" and walked over to where Gil was working on the truck. Villegas also told the agent that the "heroin was in the truck." The agent then left, telling Villegas he would be back.

Villegas returned to talk to Gil, and, according to the surveillance officers who were watching the area, Gil took a brown paper bag from his truck and gave it to Villegas. When the agent returned, the sale was finally completed, with Villegas giving the agent a brown paper bag, similar to the one which Gil had been seen to give Villegas earlier, which proved to contain heroin.

As mentioned earlier, Villegas was acquitted on the defense of entrapment. Gil was convicted, with the district judge expressly stating that he was relying on Villegas's statements to the undercover agent about his "partner" and the heroin being on the truck, admitted pursuant to the coconspirator exception to the hearsay rule, in addition to the other circumstantial evidence suggesting Gil's guilt.

Rule 801(d)(2)(E), Fed.R.Evid. provides:

A statement is not hearsay if . . . (t)he statement is offered against a party and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

The Rule classifies such a statement as an "admission," and, except for its designation of coconspirators' statements as "not hearsay," is a codification of the common law rule admitting such statements as an exception to the hearsay rule. However, Rule 104, governing the determination of preliminary questions of admissibility, has been held to affect both the order and burden of proof concerning the underlying requirements of Rule 801(d)(2)(E). The rule in the Seventh Circuit was clarified in United States v. Santiago, 582 F.2d 1128 (7th Cir.1978), which established that the question of admissibility is solely for the judge and that statements in a criminal case are to be admitted against the defendant once the Government has established by a preponderance of the evidence, independent of the statements themselves, that a conspiracy existed, that the defendant was a member of the conspiracy, and that the statement was made during the course of and in furtherance of the conspiracy. The trial judge in this case expressly recognized and applied the Santiago standard in admitting the statements made by Villegas against Gil.

The defendant argues, however, that because of an unusual combination of circumstances in this case, the defendant is entitled to a new trial without the use of Villegas's statements against him. Those circumstances, he contends, are the fact that this case involved an alleged criminal joint venture comprised of only two individuals, the use of statements of one to convict the other pursuant to the coconspirator exception to the definition of hearsay, and the acquittal of the declarant because of entrapment on the part of the Government. The rationale of the defendant's argument is that the entrapment acquittal means that the declarant committed no act which is a crime under the narcotics statutes, and therefore cannot be considered to have been a member of a joint venture to commit those acts. Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), reaffirmed the traditional approach to entrapment, ruling that a successful entrapment defense negates the existence of crime, because the criminal statute is interpreted to have no application to an act committed at the Government's instigation. The defendant next argues that since one member of the alleged joint venture has established that his conduct was not criminal, applying the substantive law of conspiracy to the effect that it is impossible to have a conspiracy involving only one person, as a matter of...