U.S. v. Navarro, s. 83-1602

Citation737 F.2d 625
Decision Date14 June 1984
Docket Number83-1639 and 83-1640,Nos. 83-1602,s. 83-1602
Parties15 Fed. R. Evid. Serv. 1447 UNITED STATES of America, Plaintiff-Appellee, v. Juan NAVARRO, Andres Mugercia and Guillermo Perdomo, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

David Bortman, Jerry B. Kurz, Gerald J. Collins, Chicago, Ill., for defendants-appellants.

L. Felipe Sanchez, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUDAHY and FLAUM, Circuit Judges, and BARTELS, Senior District Judge. *

BARTELS, Senior District Judge.

Guillermo Perdomo, Juan Navarro, and Andres Mugercia appeal from a jury verdict finding them guilty of conspiracy and distribution of cocaine. 1 Perdomo and Navarro received suspended sentences and five years probation, and Mugercia received a sentence of three years imprisonment plus a special parole term and probation. Their appeal is predicated upon the failure of the district court to (1) permit inquiry into an informant-witness' home address and place of employment, (2) order production of the informant's Immigration and Naturalization Service ("INS") file, and (3) find entrapment as a matter of law.

I Background

Defendants' convictions arose from the sale of cocaine in September, 1982 to an undercover Drug Enforcement Administration ("DEA") agent, Leo Arreguin. A DEA informant, Jose Gutierrez, had introduced defendants to Arreguin. Defendants do not dispute the sale, but contend that they had been entrapped by Gutierrez and Arreguin. The government presented its case largely through the testimony of Gutierrez and Arreguin. Perdomo and Navarro took the stand on their own behalf but Mugercia did not.

Gutierrez's and Arreguin's Testimony

Gutierrez first met Perdomo in December, 1981, when Perdomo was employed at Grant Hospital in Chicago, to which Gutierrez had been assigned by a private security agency as an undercover agent to investigate drug dealings and thefts involving hospital employees. Gutierrez's work at Grant Hospital was in a dual capacity because he had also been an active DEA informant since September, 1980. When Gutierrez first befriended Perdomo he inquired whether Perdomo knew of anyone at the hospital willing to sell Gutierrez cocaine. Perdomo, unaware of Gutierrez's undercover role, said that he did and shortly thereafter introduced Gutierrez to "Elias," a hospital employee. Perdomo vouched for Gutierrez and was present when Gutierrez and Elias discussed a cocaine purchase. Without further participation by Perdomo, Gutierrez at a later date purchased cocaine from Elias' brother, leading to the arrests of both brothers. 2 After his initial inquiry concerning cocaine dealers, Gutierrez ceased further inquiry of Perdomo, even though the two became friends and met frequently on a social basis afterwards.

In August, 1982, Perdomo asked Gutierrez about finding someone interested in buying cocaine. Gutierrez warned Perdomo not to get involved with drugs, but agreed to "help" after Perdomo persisted and claimed he needed the money. Gutierrez arranged a meeting with "Polo" as a possible buyer. In fact, "Polo," whom Gutierrez had previously identified to Perdomo as a wealthy and influential friend, was Agent Arreguin, Gutierrez's DEA contact. Gutierrez and Arreguin met Perdomo near Grant Hospital in mid-August to discuss a sale of cocaine. Perdomo, however, could not answer Arreguin's questions about price and quality, stating that he had a friend who could. On September 3rd Arreguin and Gutierrez met with Perdomo who introduced Navarro as the friend previously mentioned. Navarro offered to arrange the delivery of cocaine to Arreguin in Miami, Florida, and promised to check with his source regarding a sample.

Perdomo and Navarro--the latter playing a more substantial role--contacted Gutierrez and Arreguin numerous times during the following week in connection with a proposed sale in Miami of two kilograms of cocaine. At a meeting on September 7th Navarro purportedly called his Miami source to whom Gutierrez spoke briefly and whose voice Gutierrez later identified as that of Mugercia. 3 After the call Navarro assured Arreguin of the cocaine's high quality based on Navarro's familiarity with the source and his prior experiences transporting cocaine by vehicle from Florida to Illinois. Arreguin, however, declined to make the purchase in Florida and requested Navarro to check with his local sources. Approximately one week later Navarro told Gutierrez that he had located a Chicago source of cocaine and had a sample. Shortly thereafter Navarro met Arreguin near Gutierrez's home and sold him a sample for $150. 4 After discussion of the terms Arreguin told Navarro to contact his source and call when ready to deliver.

The sale took place on September 21st. Perdomo and Navarro were to receive a $3,000 commission for arranging the sale to Arreguin of one pound of cocaine for $35,000. Perdomo and Navarro introduced Mugercia to Arreguin and Gutierrez as the one who would deliver the cocaine within minutes after counting the money. Surveillance agents watched as Mugercia departed to a nearby alley where he picked up a half-pound package of cocaine from Vincente Chao and delivered it to Arreguin as the first phase of the sale, whereupon all the defendants were arrested.

Perdomo's and Navarro's Testimony

Perdomo and Navarro sharply disputed the testimony of Gutierrez and Arreguin. Perdomo claimed that in December, 1981, when Gutierrez first inquired about cocaine dealers, he responded negatively and that Elias was just one of many people at the hospital Perdomo introduced to Gutierrez as a friendly gesture. Perdomo specifically denied any knowledge of Elias' connection with drugs. In addition, Perdomo testified that Gutierrez periodically asked him about cocaine dealers as part of a deliberate campaign to induce him to find cocaine for Arreguin. Perdomo claimed to have met Arreguin in February, 1982, and that Arreguin also urged him to find cocaine sources in exchange for money. Perdomo denied initiating in August the sale which took place in September, and generally claimed no involvement with drugs prior to meeting Gutierrez.

Navarro, a friend of Perdomo's from their native Cuba, testified that he coincidentally met Gutierrez in August, 1982 at Perdomo's apartment and, being unemployed at the time, fell prey to Gutierrez's offer of money in exchange for finding cocaine sources for Arreguin. According to Navarro, all his statements regarding a Miami source of cocaine were "puffery" designed to stall for time while he located a local source. Similarly, Navarro claimed that the call to his Miami source on September 7th was actually a pre-arranged local call to a friend as part of the ruse. Navarro joined Perdomo in claiming no prior involvement with narcotics prior to meeting Gutierrez. In sum, Navarro and Perdomo depicted themselves as non-predisposed victims of Gutierrez's persistent efforts, as a paid informant, to induce them to find cocaine for sale to Arreguin.

Impeachment of Gutierrez

Defense counsel vigorously attacked the credibility of Gutierrez, whose testimony obviously was crucial in rebutting defendants' entrapment defense. Gutierrez's past included deportation from the United States in 1966 as an illegal alien and, after re-entering in 1968 as a legal resident, a 1976 conviction and jail term for participating in a large-scale heroin importation and distribution conspiracy. After his release from prison Gutierrez offered his services to the DEA as an informant, and from September, 1980 to the time of trial he earned $18,000 in that capacity, working on 20-25 cases. Finally, in 1981 the INS sought to deport Gutierrez because of his 1976 conviction. However, after a hearing at which Arreguin testified on Gutierrez's behalf, the immigration judge waived deportability over the INS's objections. In connection with their efforts to impeach Gutierrez's credibility, defendants challenge the district court's rulings concerning the failure to produce his INS file and suppression of his home address and place of employment on cross-examination.

A. The INS File

Based on the DEA's intervention in Gutierrez's 1981 deportation proceeding, defense counsel contended before the jury that Gutierrez's residency in the country was conditioned upon cooperation with the DEA. Such an agreement, counsel argued, would motivate Gutierrez to lure innocent persons into finding sources of narcotics and then testify falsely in order to earn money and insure his continued residency.

Prior to trial, counsel subpoenaed Gutierrez's INS file to search for evidence of such an agreement. The government did not comply and on the first day of trial, prior to Gutierrez's direct testimony, counsel moved to compel production of the file. The government resisted disclosure on the ground that the file would reveal Gutierrez's home address and place of employment. An INS attorney who was present in court and who had located the file explained to the court the circumstances of the 1981 deportation proceeding. In response to the court's specific question, the attorney represented that no agreement existed between the government and Gutierrez conditioning his residency upon cooperation with the DEA or any other governmental agency. The court, accepting the government's representation in lieu of reading the voluminous file offered for in camera inspection, denied the defense request. 5 In so ruling, the district court made no mention of the government's alleged justification for nonproduction, i.e., revelation of Gutierrez's address and place of employment.

B. Gutierrez's Home Address and Place of Employment

Having detected the government's reluctance to disclose Gutierrez's address and work place in connection with the INS file, defense counsel requested an advance ruling whether the court would permit cross-examination of...

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