U.S. v. Rodriguez
| Decision Date | 18 September 1992 |
| Docket Number | No. 92-1325,92-1325 |
| Citation | 975 F.2d 404 |
| Parties | 36 Fed. R. Evid. Serv. 1085 UNITED STATES of America, Plaintiff-Appellant, v. Carlos RODRIGUEZ, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James P. Fleissner, Asst. U.S. Atty., Susan E. Cox, William D. Shaver, Asst. U.S. Atty. (argued), Crim. Div., Barry R. Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, for plaintiff-appellant.
Marvin Bloom (argued), Chicago, Ill., for defendant-appellee.
Before CUMMINGS, COFFEY, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.
A grand jury indicted Carlos Rodriguez, Cesar Hernandez, and Julio Gil for conspiracy to distribute five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. In a pretrial order, the district court ruled that statements made by Hernandez and Gil could not be admitted against Rodriguez because the Government had not presented sufficient evidence to demonstrate that Rodriguez was a member of the charged drug conspiracy. The Government, pursuant to 18 U.S.C. § 3731, interlocutorily appeals this ruling. We reverse and remand for trial.
Under Fed.R.Evid. 801(d)(2)(E), a "statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." In United States v. Santiago, 582 F.2d 1128, 1130-31 (7th Cir.1978), we held that when a statement of a coconspirator which would otherwise be regarded as hearsay is proffered by the Government Fed.R.Evid. 104(a) 1 requires that the district court make a preliminary determination regarding the admissibility of the declaration of the coconspirator. In Santiago we also made clear that as a condition for admission of such statements, the Government must provide sufficient evidence to convince the district court, by a preponderance of the evidence (i.e. it is more likely than not), that (1) a conspiracy existed, (2) the defendant and the declarant were members of the conspiracy, and (3) the statement(s) sought to be admitted were made during and in furtherance of the conspiracy. Id. at 1134. See also United States v. Cox, 923 F.2d 519, 526 (7th Cir.1991). "[T]he court may consider the very statement(s) the admission of which is sought by the Government in deciding whether these foundational elements have been met." Cox, 923 F.2d at 526 n. 5 (citation omitted). In Santiago, we also stated that the Government may submit evidence of these elements in a pre-trial proffer, and the district court may admit the statement(s) subject to its later determination during trial that the Government has established by a preponderance of the evidence the three foundational elements. 582 F.2d at 1131; Cox, 923 F.2d at 526. These evidentiary submissions are known as "Santiago proffers." Although we have approved "other procedures a district court can employ in making the preliminary admissibility determination required by Santiago", Cox, 923 F.2d at 526 (describing alternate procedures), we have suggested that the use of pre-trial Santiago proffers can be an efficient method of making the preliminary Fed.R.Evid. 801(d)(2)(E) determination, United States v. Shoffner, 826 F.2d 619, 630 (7th Cir.) cert. denied sub. nom. Stange v. United States, 484 U.S. 958, 108 S.Ct. 356, 98 L.Ed.2d 381 (1987).
In the instant case, the district court examined two Santiago proffers submitted on behalf of the Government. In their first submission, the Government informed the district court that it would present evidence of the following events: On August 29, 1991, "a cooperating individual ('CI'), who will testify at trial, spoke to defendant Cesar Hernandez about completing a six kilogram cocaine transaction for $21,500 per kilogram." After this conversation, the CI and Cesar Hernandez had a series of taped telephone conversations about the time, place, and quantity of the narcotics transaction. On September 6, 1991, Hernandez and the CI met at a restaurant on Lawrence and Western Avenues in Chicago. Hernandez informed the CI that "his people would bring the six kilograms shortly and would page Hernandez as soon as they were ready." Thirty minutes later, Hernandez made a call from the pay phone located on Lawrence Avenue hoping to determine the cause of the delay. After the call, Hernandez told the CI that [Hernandez'] nephew would deliver five kilograms to a location nearby, and would bring the remaining one kilo later. Hernandez then told the CI that they were to go to an apartment located on Artesian Avenue to complete the transaction. After reaching the Artesian Avenue address, Hernandez and the CI entered a basement apartment to await the delivery of the cocaine. A Mexican male, who, the Government states in its brief, was Hernandez' first source of cocaine, arrived at the basement apartment first. However, this man demanded to see the money for the six kilograms of cocaine before proceeding further. Shortly after he left, another individual, later identified as Gil, came to the apartment, and said that he had the five kilograms. Hernandez ordered him to get the drugs. Gil was next observed apparently placing a beeper call. Shortly afterwards, Rodriguez brought a car around to the intersection of Lawrence and Artesian and picked up Gil. Gil took a leather bag from the trunk of the car and brought it to the basement apartment. All this activity was observed by Government law enforcement agents.
After reviewing this first evidentiary proffer, the district court ruled, in a written order, that the statements made by Hernandez and Gil concerning the drug transaction could be admitted against Hernandez and Gil, but not against Rodriguez. The district court explained:
The Government then proceeded to submit an amended proffer. In it, the Government described the following additional evidence: Hernandez had informed the CI that he expected a multi-kilogram delivery of cocaine from Miami, Florida. On the day of the delivery, September 6, 1991, Hernandez identified two potential sources for the cocaine while he and the CI were waiting for delivery. Because the first source delayed the delivery of the drugs that day, Hernandez contacted a second source. He later stated that his nephew would bring the drugs to an address on Artesian Avenue. The CI and Hernandez walked to the Artesian apartment. While they were there, an individual [the Mexican male described in the first Santiago proffer as the initial drug source], arrived at the apartment. Hernandez sent him away when he insisted on seeing the money before delivering the drugs. Shortly thereafter, Gil, who is in fact Hernandez' nephew, arrived at the Artesian Avenue apartment in a car driven by Rodriguez. The car had no license plates, was registered to a California resident and did not belong to Rodriguez. Rodriguez is a Miami resident who arrived in Chicago shortly prior to the drug transaction, and acquired a beeper prior to the drug transaction. He drove the car containing the cocaine that was subsequently delivered to the CI and Hernandez at the Artesian address in a manner that indicated the employment of counter-surveillance techniques. These techniques included the parking of the car a block away from the Artesian residence in an alley after dropping Gil off, despite the fact that there were empty parking spaces in front of the Artesian Avenue location. The Government asserts that its agents observed Gil emerge from the apartment and briefly use a pay phone. They next observed Gil dialing, but not speaking into the phone, consistent with using a phone to page a beeper. Shortly after Gil placed the call, Rodriguez drove up to the pay phone in the car and picked up Gil. Rodriguez was equipped with a beeper when he was arrested. After picking up Gil, Rodriguez then returned to the alley and remained seated in the vehicle while Gil removed the drugs from the trunk of the car and delivered them to Hernandez. Hernandez, when arrested, was found to be carrying Rodriguez' Miami, Florida phone number in his wallet.
This second evidentiary proffer made clear that the Government did not contend that Rodriguez is Hernandez' nephew. Instead, the Government maintained that Rodriguez was the Miami drug source identified by Hernandez.
Despite the additional evidence implicating Rodriguez described in the Government's second Santiago proffer, the district court ruled that "as the government had not made a sufficient showing in its amended Santiago proffer of the admissibility of coconspirator statements against Rodriguez pursuant to [Fed.R.Evid. 801(d)(2)(E) ], these statements are not admissible against Rodriguez." The district court provided no further explanation for its ruling, which the Government appeals.
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