U.S. v. Gutierrez

• Decision Date: 26 October 1992
• Docket Number: 91-1884,Nos. 91-1776,s. 91-1776
• Citation: 978 F.2d 1463
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Candelario GUTIERREZ, Jose Medina, and Jose Soto, Defendants-Appellants. & 91-1998.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1463

978 F.2d 1463

UNITED STATES of America, Plaintiff-Appellee, v. Candelario GUTIERREZ, Jose Medina, and Jose Soto Defendants-Appellants.

Nos. 91-1776, 91-1884 & 91-1998.

United States Court of Appeals Seventh Circuit.

Argued April 6, 1992.

Decided Oct. 26, 1992.

Barry R. Elden, Pamela Pepper (argued), Asst. U.S. Attys., Crim. Receiving, Appellate Div., Chicago, Ill., for U.S.

Karen A. Popek (argued), Chicago, Ill., for Gutierrez.

Sheldon Nagelberg (argued), Chicago, Ill., for Medina.

Adam Bourgeois (argued), Chicago, Ill., for Soto.

Before POSNER and KANNE, Circuit Judges, and BURNS, Senior District Judge. ^*

KANNE, Circuit Judge.

As part of a Drug Enforcement Administration ("DEA") undercover operation, private investigator Domingo Alvarez spoke with Jesus Padilla on the telephone and Padilla told Alvarez that he had a friend who would sell two kilograms of cocaine for $30,000 per kilogram. Padilla explained to Alvarez that his friend's normal price was $34,000 per kilogram, but he had reduced the price to $30,000 in the interest of doing future transactions with Alvarez.

After they had arranged a deal, Alvarez met Padilla and they went to a bar to meet Padilla's supplier. Padilla met Felipe Martin inside the bar, and returned to Alvarez's car with Martin to inform Alvarez that the cocaine was ready and that he should get his friend and bring the money. Alvarez had told Padilla on their drive to the bar that another man, undercover Special Agent Rafael Tovar, had the money for the cocaine. After Alvarez returned to the bar with Agent Tovar, Jose Medina arrived. All five men then left the bar to go to Medina's apartment to obtain the cocaine--Medina and Padilla in one car, Martin and Agent Tovar in another, and Alvarez by himself. When they arrived at the apartment, Alvarez stayed outside. Agent Tovar had arranged to test the quality of the cocaine before Alvarez brought in the money.

Two men, later identified as Candelario Gutierrez and Jose Soto, were sitting on a couch in the living room of the apartment when the men arrived. Agent Tovar asked Medina about the men, and Medina replied, "They're nobody." When Medina asked "Where's the package?", Gutierrez replied "In there" and pointed downward toward the compartment of the coffee table in front of the couch. Soto uncrossed his legs and pointed toward the compartment with his foot and stated, "In there."

Medina opened the door of the compartment of the coffee table and removed a package. Agent Tovar asked Gutierrez whether the cocaine was "rerock," a diluted form of cocaine, and Gutierrez laughed and replied that it was not. Agent Tovar asked Gutierrez how much cocaine they could provide him on a weekly basis because he wanted a steady source of supply, and Gutierrez replied that they could provide ten to twelve kilograms per week. After Agent Tovar examined the cocaine, which Medina had removed from the package, Medina told Tovar to get the money from Alvarez. Tovar directed Padilla to get Alvarez, but Soto stated "No, just you go," indicating that Tovar should get the money. Tovar asked to use the telephone so that he could call Alvarez on his beeper, but was told there was no telephone. Padilla then went to get Alvarez. As he left, Tovar gave the arrest signal from an electronic device that he was wearing. Surveillance DEA agents arrested Gutierrez, Medina, Soto, Padilla and Martin. A search revealed that Gutierrez had a fully-loaded semi-automatic .45 pistol in the waistband of his pants, with the hammer pulled back and the safety lever on. Two bricks of cocaine were recovered from the house, each weighing approximately two and a half ounces.

Candelario Gutierrez, Jose Soto and Jose Medina, along with two co-defendants, were charged in a two-count indictment with conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846, and with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). A superseding indictment was filed two months later, which added a third count charging Gutierrez, Soto and Medina with using and carrying a firearm during and in relation to the commission of a drug offense, in violation of 18 U.S.C. § 924(c). Medina pleaded guilty to Counts 1 and 2. A bench trial was conducted on Count 3 with regard to Medina, and he was found guilty on that count. After a jury trial, Gutierrez and Soto were found guilty on all three counts. Pursuant to the Sentencing Guidelines, the district court sentenced Medina to concurrent terms of 70 months imprisonment on Counts 1 and 2, and a consecutive term of five years on Count 3, for a total sentence of ten years and ten months. Gutierrez and Soto were both sentenced to concurrent terms of 78 months imprisonment on Counts 1 and 2, and a consecutive term of five years imprisonment on Count 3, for a total of eleven and a half years each. On appeal, Gutierrez, Soto and Medina challenge their convictions on numerous grounds, and Soto argues that the district court erred in sentencing him. ¹ We affirm the defendants' convictions, but remand to the district court for resentencing of Soto.

Gutierrez

Gutierrez contends that the superseding indictment was insufficient to charge him with knowingly using or carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). He filed a pre-trial motion to dismiss the count on the basis that it failed to explicitly allege that his use of the firearm during the drug transaction was knowing. In denying the motion, the district court noted that knowledge is an essential element of a § 924(c) offense and found that the indictment tracked the statute. See United States v. Padilla, 751 F.Supp. 761, 762 (N.D.Ill.1990). The district court found that the statutory terms "using or carrying" and "during and in relation to" necessarily include a knowledge requirement. Id. Therefore, the court concluded that the scienter requirement need not be explicitly stated in the indictment because the pleading "fairly imported" knowledge. Id. (citing United States v. Wilson, 884 F.2d 174, 179 (5th Cir.1989)). We agree.

The express terms of § 924(c) prohibit a defendant from using or carrying a firearm during and in relation to a crime of violence or drug trafficking offense. United States v. Edun, 890 F.2d 983, 986 (7th Cir.1989). The statute is violated where "the firearm is within the possession or control of a person who commits an underlying crime as defined by the statute, and the circumstances of the case show that the firearm facilitated or had a role in the crime...." United States v. Rosado, 866 F.2d 967, 970 (7th Cir.), cert. denied, 493 U.S. 837, 110 S.Ct. 117, 107 L.Ed.2d 79 (1989) (citation omitted). As the district court stated, "[c]learly, a person cannot have possession or control of a firearm and allow the firearm to play a role in the crime unless the person knew of the firearm's existence." Padilla, 751 F.Supp. at 762.

Contrary to Gutierrez's assertion, the legal theories set forth in United States v. Pupo, 841 F.2d 1235 (4th Cir.), cert. denied, 488 U.S. 842, 109 S.Ct. 113, 102 L.Ed.2d 87 (1988), and United States v. Hawkins, 741 F.Supp. 1234 (N.D.W.Va.1990), are not controlling. In Pupo, the Fourth Circuit held that "an indictment is defective if it fails to allege elements of scienter that are expressly contained in the statute that describes the offense." 841 F.2d at 1239 (emphasis added). However, the relevant statute in this case, § 924(c), does not state a scienter requirement. See Wilson, 884 F.2d at 178 (noting the general rule of construction that "knowledge of the facts constituting the offense is implied where a statute does not expressly mention any mental element"). In Hawkins, which involved § 924(c), the district court noted this distinguishing characteristic of Pupo. 741 F.Supp. at 1235. In that case, the defendant was unaware of the firearm's presence in the glove compartment of a stolen car. Therefore, the circumstances of the case did not show that the firearm facilitated or had a role in the crime. Here, however, Gutierrez's possession and control of the cocked and loaded firearm is undeniable considering that he carried it in the waistband of his pants. The indictment sufficiently charged Gutierrez with the § 924(c) offense.

In addition, Gutierrez's counsel stated during closing argument that the jury was required to find that Gutierrez had "some intent to facilitate the drug crime with the gun," and the jury was instructed that to find Gutierrez used or carried the firearm in relation to the offense it must find that he knowingly possessed the firearm during the offense with the intent to facilitate the commission of the offense. It is clear that both Gutierrez and the jury were aware of the scienter required for commission of the § 924(c) offense.

Medina

Medina argues that the district court erred in convicting him of the firearm offense pursuant to the rule of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), that co-conspirators are liable for overt acts of every other conspirator done in furtherance of the conspiracy. See United States v. Gironda, 758 F.2d 1201, 1211 (7th Cir.), cert. denied, 474 U.S. 1004, 106 S.Ct. 523, 88 L.Ed.2d 456 (1985). At the close of the evidence in his bench trial on the firearm count, Medina argued that he was not liable for Gutierrez's possession of a firearm during the drug transaction simply by virtue of being a co-conspirator. The district court rejected this argument pursuant to Pinkerton and our decision in United States v. Diaz, 864 F.2d 544 (7th Cir.1988), cert. denied 490 U.S. 1070, 109 S.Ct. 2075, 104 L.Ed.2d 639 (1989). The district court subsequently denied Medina's motion for a new trial. We agree with the district court's reasoning.

In Pinkerton, the Supreme Court held that because the overt acts of one conspirator are attributable to all co-conspirators, the same...