U.S. v. Grizales

• Decision Date: 21 September 1988
• Docket Number: No. 88-1412,88-1412
• Citation: 859 F.2d 442
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Janeth GRIZALES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 442

859 F.2d 442

UNITED STATES of America, Plaintiff-Appellee, v. Janeth GRIZALES, Defendant-Appellant.

No. 88-1412.

United States Court of Appeals Seventh Circuit.

Argued June 9, 1988.

Decided Sept. 21, 1988.

Mary Ellen Dienes, Chicago, Ill., for defendant-appellant.

David Glockner, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before EASTERBROOK and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

Janeth Grizales appeals from her conviction for possession of cocaine with intent to distribute, and distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1).

I

Grizales was charged in three counts of a five-count indictment, along with co-defendants Alberto Rojas (also known as Alberto Suarez) and Jose Rojas (also known as Jose Suarez). Count One of the indictment charged appellant and her co-defendants with conspiracy to possess cocaine with intent to distribute and conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. Count Four charged the three defendants with possession with intent to distribute, and with distribution of 126 grams of cocaine on April 13, 1987, in violation of 21 U.S.C. Sec. 841(a)(1). Count Five charged Alberto and Jose Rojas and Janeth Grizales with possession with intent to distribute, and distribution of 1934 grams of cocaine on April 14, 1987, in violation of 21 U.S.C. Sec. 841(a)(1). Following a jury trial, Grizales was acquitted on Count One and Count Four and convicted on Count Five.

Appellant was arrested on April 14, 1987, at the conclusion of a transaction for the sale of two kilograms of cocaine between Amporo Saavedra and Jose Rojas and Drug Enforcement Agency ("DEA") agent Leo Arreguin, Jr. Prior to April 14, Arreguin had made two cocaine purchases from Saavedra. Grizales was involved in the second of those two earlier transactions on April 13, 1987, as well as the April 14, 1987 sale that led to her arrest. On both occasions Grizales drove either Alberto Rojas or Alberto and his brother Jose Rojas (the record is not clear whether both of the Rojas brothers were present on April 13) in her automobile to the parking lot of a Chicago-area Kentucky Fried Chicken store where they rendezvoused with Saavedra. Saavedra and Grizales parked their automobiles near one another's, whereupon Alberto exited appellant's vehicle and entered Saavedra's vehicle.

On April 13, Alberto carried a bag or package containing some five ounces of cocaine when he exited Grizales' car. After talking briefly with Saavedra, he handed her the package, got back out of her automobile, and reentered Grizales' vehicle. Saavedra then left the parking lot, met Arreguin and completed the transaction. On April 14, 1987 a similar sequence of events transpired. At the request of Alberto Rojas, Grizales picked up his brother and him at a street corner in her automobile. When Alberto got into Grizales' car, he was carrying a brown paper grocery bag. After eventually driving some two miles and arriving at the Kentucky Fried Chicken store in appellant's car, Alberto Rojas got out of the front seat and walked to Saavedra's automobile. Rojas sat down in the front seat of Saavedra's car. After speaking with Saavedra for a short time, he got out of her car and reached into the passenger-side window of Grizales' vehicle, pulling out a brown paper bag. Alberto handed the bag to his brother Jose, who had also emerged from appellant's vehicle and instructed him to go with Saavedra. Jose and Saavedra left the parking lot and drove to meet DEA agent Arreguin.

After the delivery of the bag, which Saavedra told Arreguin contained two kilograms of cocaine, Saavedra and Jose Rojas were arrested by the DEA agents who witnessed the transaction. Shortly thereafter, Grizales and Alberto Rojas were arrested at the Kentucky Fried Chicken store parking lot where they were waiting for Jose to return. At the trial, DEA agent William Furay testified that at the time of her arrest, after being advised of her rights, appellant made a statement to Frank Tucci, one of the arresting DEA agents, wherein she revealed, inter alia, that when she picked up Alberto and Jose Rojas on the evening of April 14, she knew the brown paper bag Alberto was carrying contained cocaine. Grizales made a second statement to agents at the DEA field headquarters after being advised of her rights a second time. Lake County, Indiana Sheriff's Department Sergeant Larry Wirtz, a member of the Chicago area DEA Task Force, testified that in the course of making this second statement, appellant repeated the admission that when she picked up Alberto and Jose earlier that evening, she knew the brown paper bag Alberto was carrying contained cocaine.

Prior to trial, Grizales entered a motion to suppress any evidence pertaining to either of her post-arrest statements. That motion was denied by the district court. At trial, Grizales denied having made either statement on the evening of April 14, 1987.

II

Grizales alleges that there is not sufficient evidence in the record to support her Sec. 841(a)(1) conviction. She also asserts that her conviction should be reversed because she was denied effective assistance of counsel at trial. Finally, appellant asserts that the district court erred in imposing sentence on her. Each of these contentions will be addressed in turn.

A. The Sufficiency of the Evidence Claim--The Knowledge Element of the Sec. 841(a)(1) Offense

Appellant asserts that there was not sufficient evidence in the trial record to establish her guilt on the Count Five Sec. 841(a)(1) charge. The key to that assertion is appellant's contention that the government failed to adequately prove that she had knowledge that the material in the brown paper bag which she transported in her automobile on April 14, 1987 was cocaine. ¹

Grizales maintains that the only proof the government adduced to establish the knowledge element of the Sec. 841(a)(1) offense was the two statements she allegedly made following her arrest. Although she alleges in her brief that the statements were "demonstrably unreliable," appellant does not raise the issue of their admissibility on this appeal. Instead, Grizales claims that the two statements were not corroborated. Therefore, appellant claims that the evidence in the record, consisting solely of the two admissions, is insufficient to establish that she had knowledge of the contents of the paper bag.

In evaluating a sufficiency of the evidence claim it is not our role "to weigh the evidence or to determine the credibility of witnesses. The verdict of the jury must be sustained if there is substantial evidence, taking the view that is most favorable to the government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), quoted in United States v. Kord, 836 F.2d 368, 371 (7th Cir.1988). "Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict." Brandom v. United States, 431 F.2d 1391, 1400 (7th Cir.1970), cert. denied, 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 634 (1971), quoted in United States v. Whaley, 830 F.2d 1469, 1473 (7th Cir.1987) and United States v. Moore, 764 F.2d 476, 478 (7th Cir.1985).

The focus of our analysis of appellant's sufficiency of the evidence argument is indicated by the nature of her claim. Grizales asserts that except for her two post-arrest statements, there is no evidence in the record to establish that she had knowledge of the contents of the paper bag. Because she believes that her statements are not corroborated by other evidence as to her knowledge of the bag's contents, appellant submits that as a matter of law, the evidence is insufficient to support her conviction.

"[I]t is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused." Wong Sun v. United States, 371 U.S. 471, 488-89, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963), cited in United States v. Fearn, 589 F.2d 1316, 1321 (7th Cir.1978). See also United States v. Kerley, 838 F.2d 932, 940 (7th Cir.1988) (citing Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954)); United States v. Roth, 777 F.2d 1200, 1206 (7th Cir.1985). When an appellant challenges the sufficiency of the evidence supporting her conviction, alleging that the conviction was based solely on her own statements, a reviewing court must determine whether there is "substantial independent evidence which would tend to establish the trustworthiness of the statement." Opper, 348 U.S. at 93, 75 S.Ct. at 164, quoted in Kerley, 838 F.2d at 940. This requirement of corroboration of a defendant's statements extends beyond strict confessions to cover statements by the accused that show essential elements of the crime. Opper, 348 U.S. at 91, 75 S.Ct. at 160-61, quoted in Fearn, 589 F.2d at 1321. Because they have the "same possibilities for error as confessions," statements by an accused that tend to prove the elements of a crime must be corroborated by other reliable evidence. Id.

"The requirement of corroboration does not affect the competence or admissibility of the admission, but necessitates a determination of whether the remaining evidence aliunde the admission is sufficient to sustain the conviction." Fearn, 589 F.2d at 1321-22. In our case, the corroboration requirement does not mean that the evidence other than the Grizales' statement must independently establish the knowledge element of the charged Sec. 841(a)(1) offense. United States v. Bukowski, 435 F.2d 1094, 1106 (7th Cir.1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971). See also United States v. Trombley, 733 F.2d 35, 37 (6th Cir.1984). Rather, "[t]he purpose of...