U.S. v. Parra

• Decision Date: 29 March 2005
• Docket Number: No. 03-2171.,No. 03-2056.,03-2056.,03-2171.
• Citation: 402 F.3d 752
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arturo Garcia PARRA and Magdalena Correa, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

402 F.3d 752

UNITED STATES of America, Plaintiff-Appellee, v. Arturo Garcia PARRA and Magdalena Correa, Defendants-Appellants.

No. 03-2056.

No. 03-2171.

United States Court of Appeals, Seventh Circuit.

Argued March 29, 2004.

Decided March 29, 2005.

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Peter M. Jarosz (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Patrick J. Stangl (argued), Stangl Law Offices, Robert T. Ruth (argued), Madison, WI, for Defendants-Appellants.

Before CUDAHY, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

After conducting elaborate surveillance, a team of federal, state, and local law enforcement officials nabbed Nazario Varela, Magdalena Correa, Arturo Garcia Parra, and Luis Garcia Parra on cocaine trafficking and possession charges. (In order to keep the two Garcia Parra brothers straight, we will refer to them using their first names.) All four were indicted for conspiring to distribute and possess with intent to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. § 846, and for possessing with intent to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). Varela and Luis pleaded guilty, but Arturo and Correa went to trial and were convicted on both counts. The latter two now appeal.

Arturo has raised challenges to the admission of expert testimony regarding drug trafficking counter-surveillance techniques; the sufficiency of the evidence to sustain his conviction; and the court's refusal to reduce his offense level for having only a minor role in the conspiracy. Correa contends that the officers lacked probable cause to arrest her, and therefore the court erred in denying her motion to suppress evidence found in a search incident to her arrest. In a supplemental brief, Correa has also argued that her sentence was unconstitutional under the rule announced in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and now United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm the district court's judgment of guilt with respect to both defendants. We order a limited remand with respect to both of the sentences imposed, in keeping with the procedure outlined in United States v. Paladino, 401 F.3d 471, 2005 WL 435430 (7th Cir. Feb.25, 2005).

I

On June 20, 2002, Murillo Luna, a confidential source, purchased 55.18 grams of cocaine from Varela at the latter's home in Janesville, Wisconsin. Five days later, on June 25, Luna and Drug Enforcement Administration (DEA) Special Agent Bill Chamulak, acting in an undercover capacity, returned to Varela's home to purchase a quarter kilogram of cocaine. Varela asked Luna and Agent Chamulak to return in about half an hour. Shortly thereafter, officers observed Varela removing a white cooler from a brown Cadillac in front of his house. When Luna and Agent Chamulak returned to the house, they noticed a white cooler with the lid removed. They purchased 248.3 grams of cocaine from Varela and then departed. Thirty-five minutes later, the brown Cadillac returned to Varela's house and officers saw an Hispanic man enter the house and then leave after approximately one minute. They also saw an unidentified passenger in the vehicle. Surveillance officers followed the brown Cadillac and observed an Hispanic man and woman exit and then reenter the vehicle, which was later located at 1503 Porter Avenue in Beloit, Wisconsin. This address was the residence of Arturo, Luis, and Correa.

On July 10, 2002 at 11:30 a.m., Agent Chamulak and Luna returned to Varela's house to negotiate the purchase of one more kilogram of cocaine. Varela made a phone call and instructed Agent Chamulak and Luna to return at 3:00 p.m., because his source had to go to Chicago to obtain the cocaine. At 12:03 p.m., an officer with the Rock County State Line Area Narcotics Task Force (SLANT) observed Luis and Arturo drive away from 1503 Porter Avenue in a white Cadillac. Six SLANT vehicles and a C-26 military aircraft followed the white Cadillac from Beloit to Chicago. Remarkably, the passengers in the Cadillac never noticed their extensive entourage. Upon arriving in Chicago, they parked their car and interacted with someone in a silver car. Luis walked between some buildings with the occupant of the silver car, while Arturo returned to the white Cadillac and opened the hood and trunk. Luis then walked around the car, including the trunk area, and Arturo closed the hood and trunk. Nineteen minutes after arriving in Chicago, they departed.

At about 4:30 p.m., the white Cadillac arrived in Janesville and parked on Main Street. Arturo and Luis checked something in the trunk and then walked to the parking lot of a Quick Stop gas station, with Arturo trailing behind Luis. Officers observed Arturo standing on the corner of Racine and Main Streets, repeatedly looking up and down the street and toward the location of the white Cadillac. Shortly thereafter, Varela, Luna, and Agent Chamulak arrived at the parking lot of the Mexican supermarket located across the street from the Quick Stop. Varela got out of the vehicle and entered the surrounding neighborhood. Nine minutes later, the same brown Cadillac that was present at the June 25 cocaine sale drove into the Quick Stop parking lot. Luis approached the brown Cadillac and spoke with someone inside, later identified as Correa. The brown Cadillac then drove into the parking lot of the Mexican supermarket. Agent Chamulak observed Correa seated in the brown Cadillac, with her attention focused on Luna and Varela and on Agent Chamulak's vehicle. Surveillance personnel observed Varela approach the passenger side of the brown Cadillac and engage in a conversation with Correa. Varela later testified that Correa asked him if he had received the money from the buyer, and when he answered in the negative she commented, "This is not the way you do the deals."

As Varela and Luna walked to the white Cadillac, Correa pulled out of the parking lot and parked on the same side of Main Street as the white Cadillac. According to Special Agent Jerry Becka, this position would have allowed Correa to monitor the white Cadillac through her rear view mirror. Varela and Luna opened the trunk of the white Cadillac and found approximately one kilogram of cocaine there. Officers promptly arrested Varela, Luis, and Arturo. A minute later, Special Agent Jeanne Hehr and several other officers arrested Correa.

Both Varela and Luis pleaded guilty to both counts of the indictment. Varela testified for the government at Arturo's and Correa's trial pursuant to his plea agreement. Varela reported that he worked with Arturo in Janesville and told Arturo that he needed money. Arturo referred Varela to Luis, from whom Varela borrowed $2,200. When Varela was unable to pay back the money, he agreed to sell cocaine for Luis. Varela testified that Luis and Correa delivered the cocaine for the June 20 sale. Luis also provided Varela with the cocaine for the June 25 sale, using a white cooler. After this purchase, Correa called Varela to discuss whether he had obtained the money and his cut of the profits. Finally, Varela stated that Arturo told him that his brother had asked him to be at the July 10 transaction because his brother was afraid that Varela was going to steal the money.

The district court permitted the government to call Agent Becka to testify about the modus operandi of drug dealers, especially the use of counter-surveillance techniques, rejecting Arturo's motion in limine seeking to exclude this testimony. Agent Becka opined that Arturo and Correa provided counter-surveillance during the July 10 sale. The government established that Agent Becka had been a DEA special agent for over 19 years; that he had completed training at both basic and advanced agent schools and attended yearly meetings where he learned about the latest tricks of the drug trade; that he had personally purchased drugs in an undercover capacity over 125 times and provided surveillance in over 1,000 undercover operations; and that he had interviewed drug dealers at least 500 times to learn how they operate. On this basis, the court found Agent Becka qualified to testify as an expert.

At the close of the government's case and again at the end of trial, Arturo and Correa moved for a judgment of acquittal, which the court denied. The jury returned a verdict of guilty against both of them on both counts of the indictment. Arturo then objected to the presentence report, arguing that he should have been given a minor role reduction in his offense level computation on the theory that he had acted only as a lookout during the July 10 sale. The court refused to make this downward adjustment, adopting the calculations in the presentence report. Arturo now appeals from his conviction and his sentence, as does Correa.

II

A. Arturo Garcia Parra

Arturo first argues that the district court erred in allowing Agent Becka to testify as an expert witness. He contends that Agent Becka's testimony did not satisfy the requirements for expert testimony established by Fed. R. Evid. 702 and the Supreme Court's decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). At this point, Rule 702 has superseded Daubert, but the standard of review that was established for Daubert challenges is still appropriate. Under that standard, we review de novo the question whether the district court properly applied the legal framework, and we review decisions to admit or exclude expert testimony under the rule for abuse of discretion. See United States v. Allen, 269 F.3d 842, 845 (7th Cir.2001).

Expert testimony is admissible if offered by "a witness qualified as an expert by knowledge, skill, experience, training, or education," and "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of...