U.S. v. Lopez, s. 92-3521

• Citation: 6 F.3d 1281
• Decision Date: 12 October 1993
• Docket Number: Nos. 92-3521,92-3522,s. 92-3521
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Artemio Ramirez LOPEZ and Francisco Chaidez, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1281

6 F.3d 1281

UNITED STATES of America, Plaintiff-Appellee, v. Artemio Ramirez LOPEZ and Francisco Chaidez, Defendants-Appellants.

Nos. 92-3521, 92-3522.

United States Court of Appeals, Seventh Circuit.

Argued May 14, 1993.

Decided Oct. 12, 1993.

Mel S. Johnson, Asst. U.S. Atty. (argued), Penelope C. Fleming, Office of the U.S. Atty., Milwaukee, WI, for U.S.

Robert J. Penegor, Carl W. Chesshir, David J. Lang, Brookfield, WI, for Artemio Ramirez Lopez.

Dennis P. Coffey (argued), Coffey, Coffey & Geraghty, Milwaukee, WI, for Francisco Chaidez.

Before BAUER, EASTERBROOK, and ROVNER, Circuit Judges.

BAUER, Circuit Judge.

Artemio Ramirez Lopez and Francisco Chaidez appeal their convictions for violations of federal narcotics statutes. Ramirez was convicted of knowingly and intentionally distributing approximately ten kilograms of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Chaidez was convicted of conspiracy to possess with the intent to distribute cocaine, distribution of cocaine, possession with the intent to distribute cocaine, and the use of a firearm in relation to drug trafficking in violation of 21 U.S.C. Secs. 841(a)(1), 846, and 18 U.S.C. Sec. 924(c) respectively. We affirm.

I. Facts

This case involves a series of cocaine transactions among Ramirez, Chaidez, Carmen Fontanez, Cristobal Santiago, and Kevin Carr, a Milwaukee County, Wisconsin Deputy Sheriff. All the transactions occurred in or near Milwaukee, Wisconsin. Carr posed as a cocaine dealer and usually worked directly with Fontanez or Santiago to arrange sales of cocaine. Carr typically paid Fontanez or Santiago who then dealt with Chaidez and Ramirez. The first relevant transaction occurred on July 2, 1991. On that day, Carr picked up Santiago and, pursuant to Carr's directions, drove him to the corner of Eleventh and National where they would purchase cocaine. ¹ After arriving and waiting at Eleventh and National, a blue Chevrolet Corsica registered to Chaidez appeared. Santiago tried unsuccessfully to arrange a sale and told Carr that they would have to make the deal at Twelfth and Maple. Carr drove Santiago to the new site and, again, the blue Corsica appeared. Chaidez was driving and Fontanez was a passenger. Carr gave Santiago $2400 cash to buy cocaine. Fontanez and Santiago left their respective cars and met to discuss the deal. The two of them walked down the street and, a short time later, Santiago returned with two ounces of cocaine and handed the cocaine over to Carr.

Next, on July 22, 1991, Carr set up a transaction with Santiago and, as scheduled, the two of them arrived at Eleventh and National. After a considerable wait, Carr was invited to an apartment above a nearby restaurant to buy cocaine. Carr accepted the invitation. Fontanez had received Carr's order for a half kilogram of cocaine and called Chaidez. Chaidez agreed to supply the cocaine. Chaidez sent an unidentified man to give Fontanez the cocaine. Fontanez sold Carr the cocaine for $16,000. Santiago and Fontanez kept two thousand dollars for themselves and delivered the remaining $14,000 to the unidentified man.

On September 19, 1991, Carr and Fontanez teamed up again. Carr arranged to meet Fontanez at Sixteenth and National. Carr arrived as scheduled and met Fontanez. She did not have the cocaine. Instead, she made a series of phone calls to Chaidez from different locations. Carr and Fontanez eventually went to Fifth and Maple and met Chaidez, who was driving his blue Corsica. Fontanez retrieved a bag that contained a half kilogram of cocaine from Chaidez's car. Fontanez gave the bag to Carr in exchange for $14,500 cash. Fontanez kept $500 for herself and gave $14,000 to Chaidez.

Carr set up his next purchase through phone conversations with Fontanez. On November 13, 1991, Carr met Fontanez at Fifth and Maple. Chaidez showed up in his blue Corsica, picked up Fontanez, drove around the block, and dropped Fontanez off. Fontanez then got into Carr's vehicle with the cocaine and sold it to him for $22,400. After the sale, Chaidez sent Ramirez in Chaidez's car to pick up the money.

On January 9, 1992, law enforcement officers tapped Chaidez's phone and overheard Chaidez tell someone that he had to get a suitcase out of his residence. FBI and DEA agents monitored Chaidez's residence. They observed two people leave the Chaidez residence with a brown suitcase, put the suitcase in a car, and drive off. The agents stopped the vehicle a few blocks away and discovered that the suitcase contained 738.7 grams of cocaine and an O'Haus triple-beam scale.

The final episode took place on January 17, 1992. On that day, Ramirez drove Chaidez and Fontanez to a bar. Fontanez called Carr to set up the sale of ten kilograms of cocaine. Meanwhile, Chaidez and Ramirez drove to another location where Ramirez retrieved a blue plastic laundry basket and put it in the car. Ramirez and Chaidez then picked up Fontanez and went to a location on the shore of Lake Michigan where Fontanez had arranged to meet Carr. On the drive there, the three of them joked about the weather and the cocaine that was in the basket.

When they arrived at the lakefront, Ramirez and Chaidez left the Corsica and looked around until they spotted Carr's vehicle. They returned to their vehicle and drove to Carr's vehicle. Chaidez left his car, carried the blue plastic laundry basket with him, and entered Carr's vehicle. The basket contained ten kilograms of cocaine, which Chaidez showed Carr. A few moments later, law enforcement officers swept into the area and arrested Fontanez, Chaidez, and Ramirez. Chaidez was carrying a mobile phone, a loaded handgun, and $980 in cash when he was arrested.

After the arrest, Chaidez told police that he thought all along that Carr was a police officer. Demonstrating rather odd reasoning, Chaidez stated that he continued to sell cocaine to Carr anyway because he wanted money. Chaidez also admitted his guilt to Carr. Later that day, a search of Ramirez's residence, made with his wife's consent, produced a loaded handgun and a small scale that was covered with cocaine residue. Ramirez and his wife both testified that the gun and the scale were his, not his wife's. The FBI searched Chaidez's residence and found more than one-quarter kilogram of cocaine.

Ramirez and Lopez were tried together before a jury. The jury acquitted Ramirez of conspiring to distribute cocaine, but found him guilty of knowingly and intentionally distributing approximately ten kilograms of cocaine on January 17, 1992. Chaidez was found guilty of conspiracy to possess with the intent to distribute cocaine, distribution of cocaine, possession with the intent to distribute cocaine, and the use of a firearm in relation to drug trafficking. ² Ramirez was sentenced to a prison term of 121 months and fined $2,500. Chaidez was sentenced to 181 months and also fined $2,500. Both appeal their convictions.

II. Discussion

A. Challenges Raised by Ramirez

1. The District Court's Denial of Ramirez's Motion for Severance

Prior to trial, Ramirez asked the district court to grant him a separate trial. The court denied his request. Ramirez argues that the court's decision amounts to reversible error for two reasons. First, he claims that his trial with Chaidez precluded him from calling Chaidez as a witness. At trial, Chaidez invoked his Fifth Amendment right against self-incrimination and refused to testify. Ramirez contends that Chaidez would have testified to exculpate him (Ramirez) at a separate trial. Second, Ramirez asserts that the evidence of criminal wrongdoing against his co-defendant Chaidez unduly prejudiced the jury against him (Ramirez). We find neither argument persuasive.

We begin with the presumption that co-defendants who are indicted together are normally tried together. United States v. Smith, 995 F.2d 662, 670 (7th Cir.1993); United States v. Atterson, 926 F.2d 649, 657 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2909, 115 L.Ed.2d 1072 (1991). Rule 14 of the Federal Rules of Criminal Procedure authorizes the district court to grant a severance if it appears to the district court that a criminal defendant or the government will be unduly prejudiced by joinder of co-defendants for trial together. ³ United States v. Schweihs, 971 F.2d 1302, 1320 (7th Cir.1992). Criminal defendants who claim that a district court abused its discretion by denying a severance motion bear a heavy burden on appeal. Id. at 1321. We will reverse a district court's decision to deny severance only when the court's decision results in actual prejudice to the party appealing its decision. Smith, 995 F.2d at 670. To show actual prejudice, a defendant must demonstrate that he or she was unable to obtain a fair trial without severance, not just that a separate trial would have offered a better chance for acquittal. Atterson, 926 F.2d at 658.

The district court in this case conducted a hearing to consider Ramirez's motion for severance. As to Ramirez's first argument for severance--the possibility that Chaidez would testify at a separate trial to exculpate Ramirez--the district court commented, quite correctly, that "even if the court were to grant a severance as to Mr. Ramirez, Mr. Chaidez still may exercise his Fifth Amendment right and not testify against Mr. Ramirez if Mr. Ramirez were tried separately." Transcript of Motion for Severance at 5. Ramirez's motion for severance included an affidavit from Ramirez's attorney which told the court "[t]hat affiant has been informed by Francisco Chaidez' counsel that Chaidez would be available to testify in a separate trial for and on behalf of Artemio Ramirez after his case has been disposed of and he is no longer subject to jeopardy." Ex. A to Record in No. 92-3521 Doc. 21.

This clearly is not sufficient to require a district court to grant a severance. When a criminal defendant seeks a severance in order to obtain exculpatory testimony a co-defendant would offer, ...