U.S. v. Navarez

• Decision Date: 27 January 1992
• Docket Number: 90-2563,Nos. 90-2397,s. 90-2397
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anselmo NAVAREZ and Paulin Valles-Rodriguez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1375

954 F.2d 1375

UNITED STATES of America, Plaintiff-Appellee, v. Anselmo NAVAREZ and Paulin Valles-Rodriguez, Defendants-Appellants.

Nos. 90-2397, 90-2563.

United States Court of Appeals, Seventh Circuit.

Argued May 8, 1991.

Decided Jan. 27, 1992.

Patricia B. Holmes, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Crim. Div. and Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for the U.S., plaintiff-appellee.

Robert L. Rascia (argued), Rascia & Rascia, Chicago, Ill., for Anselmo Navarez, defendant-appellant.

Domingo F. Vargas (argued), Chicago, Ill., for Paulin Valles-Rodriguez, defendant-appellant.

Before WOOD, Jr., ^* COFFEY, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

On January 10, 1990, defendants-appellants Anselmo Navarez and Paulin Valles-Rodriguez together with Rosalie Huereca, Hector Mendoza-Martinez, and Santos Salgado were charged in a two count indictment with conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2. Huereca, Mendoza-Martinez, and Salgado pleaded guilty before trial.

On April 5, 1990, a jury found Navarez and Paulin Valles-Rodriguez guilty on both counts of the indictment. On June 13, 1990, Navarez was sentenced to 63 months implisonment on each count, the sentences to run concurrently. Rodriguez received a sentence of 78 months imprisonment on each count, to run concurrently. Both appellants challenge their convictions on the ground that there was insufficient evidence to support the jury's guilty verdicts. Rodriguez argues that it was plain error for the district court to allow the government to introduce evidence that $34,000 was found in the basement of a building on 1709 South Paulina, from which Navarez had procured cocaine to sell to undercover officers. In addition, Navarez appeals his sentence on the ground that the district court improperly denied him a reduction in his offense level for minimal or minor participation in the conspiracy pursuant to the United States Sentencing Guideline § 3B1.2. We affirm in all respects.

The drug charges against Navarez and Valles-Rodriguez resulted from an undercover investigation coordinated by the Drug Enforcement Administration ("DEA") and the Drug Enforcement Task Force. On July 17, 1989, at approximately 5:00 p.m., Agent Arthur Chavarria of the DEA received a page from an unfamiliar telephone number. Chavarria had given his page number through confidential informants to persons who were interested in selling drugs. The phone number was subscribed to a coin-operated public telephone located at the Homan Paradise Halo Bar, 2459 South Homan, in Chicago, Illinois. When Chavarria returned the call, the individual answering the phone identified himself in Spanish as Santos, an individual unknown to Chavarria. Chavarria later learned that his full name was Santos Salgado. Salgado told Chavarria that he was told to give Chavarria a call when "they" were ready with the "three" to sell to Chavarria. Agent Chavarria asked Salgado whether he meant "guns or powder" and Salgado replied "powder." Chavarria understood the terms "three" and "powder" to mean three kilograms of cocaine. Agent Chavarria informed Salgado that he would call him later, and the conversation concluded.

Ten minutes later, Chavarria received another page from the same number. When Chavarria called back, Salgado answered the phone and told Chavarria that Salgado had "three ready for sale" and that each would sell for $18,500. They then made arrangements to meet at 3:00 the next day at the McDonald's restaurant located at 26th Street and Kedzie Avenue in Chicago. Chavarria indicated that he would be wearing a yellow shirt and Salgado indicated that he would be wearing a purple or maroon shirt.

The next day, July 18, 1989, Agent Chavarria and his partner, undercover Agent Alex Rodriguez, arrived at the designated McDonald's parking lot at approximately 2:45 p.m. to meet Salgado. Salgado did not appear, although the agents waited for him for forty-five minutes. The agents then returned to the DEA office in downtown Chicago.

Upon arrival there, Chavarria received a page from the same number as the previous pages. Prior to returning the call, Chavarria prepared a tape recording device to record his call. He then called the number. A person unfamiliar to Chavarria answered the call and Chavarria asked to speak with Santos Salgado. Salgado took the call and explained that he had been late for the planned meeting with Chavarria because he walked to the McDonald's parking lot. Salgado and Chavarria then made arrangements to talk again the next afternoon concerning the sale of the three kilograms of cocaine.

On July 19, 1989, Agent Chavarria contacted Salgado and made arrangements to meet at 3:30 p.m. that day at the McDonald's parking lot on 26th and Kedzie. Salgado informed the agent that he would be wearing a "T-Shirt with an Astros sign on it." This conversation, in Spanish, was also recorded by Chavarria.

At 3:30 p.m. on that day Chavarria and Agent Rodriguez drove to the McDonald's parking lot in an unmarked, undercover vehicle. When they arrived, they walked toward the restaurant. Other undercover agents were maintaining surveillance of the restaurant and parking lot. As they approached McDonald's, Chavarria saw a Hispanic male standing near the restaurant wearing an Astros T-Shirt. Chavarria and Rodriguez then introduced themselves to Salgado. Agent Chavarria then asked Salgado whether he had "them" with him, referring to the three kilograms of cocaine. Salgado looked across the street at another Hispanic male and motioned that individual to join them. The other individual ignored Salgado. Salgado and the agents went into McDonald's and purchased coffee.

When they left McDonald's, Chavarria and Salgado walked toward a pickup truck where the Hispanic male, who had previously been across the street, was now standing. The Hispanic man, later discovered to be co-defendant Rosalie Huereca, introduced himself as "Jaime." Chavarria asked Huereca if he had "three for sale." Huereca responded that he did and that each would cost $18,500. Huereca indicated that he owned a construction company and the Homan Paradise Bar. Chavarria returned to his car and drove away.

On the following day, July 20, 1989, at 2:25 p.m. and 3:50 p.m., Chavarria called Salgado at the Homan Bar. During those conversations, which were recorded, Chavarria, Salgado, and Huereca agreed to meet later that evening at 5:00 p.m. in the parking lot of a Jewel food store located at the corner of Rockwell and Cermak in Chicago. Agent Chavarria stated that he had the money for "the three."

Agents Chavarria and Rodriguez made arrangements to have surveillance agents near the Jewel and they obtained $34,000 in government funds to use as a "flash roll." They placed the money in a brown paper bag and proceeded to the parking lot at Rockwell and Cermak. They arrived there at approximately 5:00 p.m. and parked the undercover car facing north.

Shortly thereafter, a late model brown Pontiac Sunbird, whose license plate number was NA2693, arrived in the parking lot. The car was registered to Anselmo Navarez, of 1709 South Paulina. Appellant Navarez, unknown to the agents at that time, was driving and Huereca was his passenger. Navarez parked twenty yards away from the agents. Huereca and Chavarria approached each other halfway between the cars. Chavarria asked Huereca if he had "them" with him and Huereca replied that he did not. Huereca indicated that he would get the cocaine. Huereca asked the agent to follow him, but Chavarria decided to remain in the parking lot while Huereca went to get the cocaine.

Huereca walked toward the Pontiac Sunbird, when Agent Chavarria asked him if he wanted to see the money. Huereca then walked back towards Navarez's Sunbird, and from the passenger side, looked into the car and asked Navarez if he wanted to see the money. Navarez and Huereca then both accompanied Chavarria to the car where Agent Rodriguez showed them the money. A surveillance agent photographed both men standing near the undercover car, looking at the $34,000. After viewing the money, defendant Navarez and Huereca left the parking lot, having said they would return in approximately twenty-five minutes. The agents waited together in the undercover car.

Surveillance officers John Wheaton and Al Bautista, followed Navarez's Sunbird as it left the parking lot. The Sunbird drove to a building located at approximately 1708 South Paulina in Chicago. Officer Wheaton parked his car to the north of the Sunbird, facing south and Officer Bautista parked his vehicle south of the Sunbird, facing north. Navarez parked his vehicle across the street from the building located at 1709 South Paulina.

Wheaton observed three individuals, later identified as Valles-Rodriguez, Mendoza-Martinez, and a third individual known only as "Ruiz," cross the street from outside 1709 South Paulina and approach the Sunbird. After two or three minutes, all three men went back across to 1709 South Paulina. Ten minutes later, all three men, again crossed the street, with Ruiz standing a few feet behind the other two. After two or three minutes, they again returned to the vicinity of 1709 South Paulina.

Approximately fifteen or twenty minutes later, Valles-Rodriguez and Mendoza-Martinez returned to the Sunbird while Martinez carried a Jewel grocery bag. Ruiz did not accompany them. Valles-Rodriguez walked approximately three steps behind Mendoza-Martinez as he walked to Navarez's car. Martinez handed the bag to the driver, Navarez, who placed it in the back of the car.

After a short conversation, Navarez pulled into the street where he stopped. Valles-Rodriguez and Mendoza-Martinez got into a green pick-up truck, and pulled into traffic directly behind...