U.S. v. Perez

• Citation: 870 F.2d 1222
• Decision Date: 09 March 1989
• Docket Number: Nos. 88-1391,88-1855,s. 88-1391
• Parties: 27 Fed. R. Evid. Serv. 948 UNITED STATES of America, Plaintiff-Appellee, v. Luis Anthony PEREZ and Faustino Calderon-Abeja, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1222

870 F.2d 1222

27 Fed. R. Evid. Serv. 948

UNITED STATES of America, Plaintiff-Appellee, v. Luis Anthony PEREZ and Faustino Calderon-Abeja, Defendants-Appellants.

Nos. 88-1391, 88-1855.

United States Court of Appeals Seventh Circuit.

Argued Jan. 20, 1989.

Decided March 9, 1989.

Leland Shalgos, Nathan Diamond-Falk, Chicago, Ill., for defendants-appellants.

Helene B. Greenwald, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before BAUER, Chief Judge, KANNE, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

BAUER, Chief Judge.

On May 8, 1987, defendants Luis Anthony Perez (Perez) and Faustino Calderon-Abeja (Calderon) were arrested after attempting to sell a kilogram of cocaine to undercover Drug Enforcement Administration (DEA) Special Agent Anthony Greco. The grand jury returned a nine-count indictment against Perez, Calderon, Elsa Rego, and her daughter, Angela Rego. Count one charged Perez and Calderon with conspiring with each other, with Elsa and Angela Rego, and with others unknown, to knowingly and intentionally distribute and possess with intent to distribute, cocaine and heroin, in violation of 21 U.S.C. Sec. 846. Perez also was charged with distributing, possessing and possessing with intent to distribute, cocaine and heroin, in violation of 21 U.S.C. Sec. 841(a)(1). Calderon was similarly charged with respect to cocaine only. Both defendants were charged in count seven with using and carrying firearms during and in relation to their commission of drug trafficking crimes charged elsewhere in the indictment, in violation of 18 U.S.C. Sec. 924(c). In counts eight and nine, Calderon and Perez both were charged with being a felon knowingly in possession of firearms that previously had traveled in foreign commerce, in violation of 18 U.S.C. Sec. 922(g)(1).

After a jury trial, the defendants were convicted of all counts with which they were charged. Alleging numerous trial errors, the defendants brought this appeal. We affirm the defendants' convictions.

A.

In April of 1987, a DEA confidential informant asked the Regos, who were living at the Riverside Motel in Chicago, if they could obtain narcotics for him. The Regos in turn asked Perez if he could supply them with two ounces of heroin. On April 27, Perez supplied the Regos with heroin. The next day, the Regos sold one ounce of heroin to DEA Special Agent Patricia Collins, who was accompanied by the informant. Later that day the Regos gave Perez $700 and the unsold ounce of heroin.

After the heroin sale, the informant ordered two ounces of cocaine. On April 30, and again on May 4, DEA Special Agent Greco, accompanied by the informant, came to the Regos' hotel room to purchase the two ounces of cocaine. However, on both occasions, Perez failed to deliver the cocaine. On May 6, Perez delivered the cocaine and the next day Greco bought the cocaine with $3000 in marked government money. Greco also asked the Regos if they could supply him with a kilogram of cocaine. On May 7, Perez picked up $2,200 of the marked government money. At that time, the Regos asked Perez if he could supply a kilogram of cocaine and a half-kilogram of heroin. (On May 7, DEA Agent Collins had contacted the Regos about supplying the heroin.)

During the morning of May 8, Perez arrived at the Regos' motel room with a kilogram of cocaine wrapped in a green package and tucked between his pants and shirt. While he was there, Perez made a number of telephone calls. On three occasions he used the telephone to page the beeper number belonging to Calderon. There were also seven phone calls from a car telephone owned and subscribed to by Calderon to the motel. About 2:00 p.m. that afternoon DEA surveillance agents took up positions in the vicinity of the Riverside Motel. At 4:30 p.m., Collins arrived to purchase the heroin. In the alley behind the motel, Calderon sat in a green Buick Regal. Two calls were made between the motel and the car during this time. Collins found out that the heroin was not there and left. Perez then went to Calderon's car and they drove to the south of the motel.

At 4:50 p.m., Greco arrived at the motel. Perez and Calderon were still sitting in the green Buick. After Greco talked with Angela Rego, who then spoke to Perez, Perez walked over to Greco and told him it was "too open out here. Let's do it inside." He also said "I got your package here," lifting up his shirt to show Greco the green package. Shortly thereafter, Perez, Calderon, and the Regos were arrested.

Perez and Calderon both were searched. The green package which Perez carried in his waistband contained 1002.43 grams of cocaine. Perez also had 2.51 grams of heroin in his possession. At the time of his arrest, Calderon had a digital display telephone beeper attached to his belt. The car Calderon was driving was also searched. It was equipped with two secret compartments which contained a loaded semi-automatic pistol, a loaded Smith and Wesson .357 Magnum revolver, 5.63 grams of cocaine, two packages of procaine, and an electronic scale. Also recovered were $7,650, $1,600 of which were the marked dollars that Greco had used to pay the Regos on May 6.

The defendants were tried to a jury from November 30, 1987 to December 16, 1987. The jury found Perez and Calderon guilty of all counts in which they were charged. Perez was sentenced to thirteen years imprisonment, to be followed by twenty years of supervised release and five years probation. Calderon was sentenced to eighteen years imprisonment followed by life-time supervised release, five years probation and a $51,000 fine. Defendants then brought this appeal, alleging that numerous trial errors warrant reversal of their convictions.

B.

Perez contends that the trial court erred by refusing to admit extrinsic evidence about Elsa Rego's 1985 narcotics arrest and conviction. In his defense, Perez claimed that Angela and Elsa Rego (who testified for the government) were either the actual sources of the cocaine and heroin sold to agents Greco and Collins or they were protecting the identity of the actual source. To prove his defense, Perez sought to introduce the testimony of Detective Brent Fowler, the narcotics detective who arrested Elsa Rego in 1985. Although the district court refused to admit the detective's testimony, the court did admit a certified copy of Rego's 1985 conviction under Federal Rule of Evidence 609 to impeach Rego's testimony. (At trial, Rego testified that she had never sold drugs in the past.)

The district court's decision to admit or exclude evidence under Rule 404(b) is reviewed under the abuse of discretion standard. See United States v. Brown, 688 F.2d 1112, 1115 (7th Cir.1982). In our view, the district court properly refused to admit the detective's testimony. First, Federal Rule of Evidence 608(b) bars the admission of such testimony for impeachment purposes. That rule provides that "specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence." Fed.R.Evid. 608(b). See also, J. Yanan & Associates v. Integrity Insurance Co., 771 F.2d 1025, 1031 (7th Cir.1985). Second, the testimony did not meet the test of relevance under Federal Rule of Evidence 404(b). Although Perez argues that Rego's prior narcotics conviction shows that she ran the narcotics operation in this case and was the source of the narcotics, nothing in Detective Fowler's proposed testimony indicated that Elsa Rego was the source of the narcotics she sold in 1985 or that she was the "head" of that operation. In short, Fowler's testimony was not relevant to show that Rego, and not Perez, was the actual source of the narcotics sold to Collins and Greco.

C.

Calderon's first argument on appeal is that the district court should have allowed him to admit as substantive evidence the transcript of an interview with Angela Rego. The transcript contained sworn statements by Rego that contradicted portions of her testimony at trial. Shortly before the trial started, Calderon's attorney contacted Angela Rego's attorney, Michael Logan, and requested an interview with Rego. Although a court reporter was present when Rego was interviewed, the requirements of Federal Rule of Criminal Procedure 15, which sets forth the circumstances in which depositions for criminal proceedings may be taken, were not met. ¹

Calderon sought to admit those portions of Rego's transcript which contradicted her testimony at trial, arguing that those statements were prior inconsistent statements under oath and thus admissible under Federal Rule of Evidence 801(d)(1)(A). In order to be admissible as substantive evidence, the prior statement must be given at "a trial, hearing, or other proceeding, or in a deposition." Fed.R.Evid. 801(d)(1)(A). Because the pretrial interview with Rego did not fulfill the requirements of a deposition under Rule 15, the transcript does not meet the admissibility requirements of Rule 801(d)(1)(A). (The district court did allow Calderon to impeach Rego by calling Logan, who was present at the interview, to testify about what Rego said during the interview.)

Because this conclusion is so patently obvious, it is difficult to understand why this issue is before us on appeal. The fault for this lies with the government and not with the defendant. The government sought a copy of defense counsel's interview with Rego, apparently arguing that it was a deposition. ² The court ordered the defendant to provide the government with a copy of transcript, which the government used to prepare Rego for her trial testimony. Then, when Calderon wanted to introduce the document as substantive evidence, the government changed its mind and argued that the transcript was not a deposition and therefore inadmissible. Calderon now argues that the government cannot have its cake and eat...