U.S. v. Salazar

• Decision Date: 06 January 1993
• Docket Number: No. 92-1021,92-1021
• Citation: 983 F.2d 778
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan R. SALAZAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 778

983 F.2d 778

UNITED STATES of America, Plaintiff-Appellee, v. Juan R. SALAZAR, Defendant-Appellant.

No. 92-1021.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 9, 1992.

Decided Jan. 6, 1993.

Rodger A. Heaton, Asst. U.S. Atty. (argued), Springfield, IL, for plaintiff-appellee.

Stanley N. Wasser (argued), Feldman & Wasser, Springfield, IL, for defendant-appellant.

Before POSNER and COFFEY, Circuit Judges, and SHADUR, Senior District Judge. ^*

SHADUR, Senior District Judge.

After Juan R. Salazar ("Salazar") was convicted by a jury of two drug offenses--one count of conspiring to distribute cocaine and one substantive count of possessing cocaine with the intent to distribute it--he was sentenced to a concurrent prison term of 169 months on each count. On this appeal Salazar challenges the sufficiency of the evidence on both counts and also argues that the district court erred by attributing 15 kilograms of cocaine to him in calculating his sentence under the United States Sentencing Guidelines ("Guidelines"). We affirm the conviction and sentence in all respects.

Background

After informant Louis Isirov had alerted the Drug Enforcement Agency ("DEA") that Salazar had supplied him with cocaine, the DEA taped conversations between the two and arranged for Salazar to meet undercover DEA agent John Schaefer ("Schaefer") at a motel in Carlinville, Illinois. At that meeting Schaefer posed as a drug buyer and investor, while other agents posed as Schaefer's workers. In the course of the tape-recorded meeting Salazar said that he had a large marijuana supplier in Mexico and a large cocaine supplier in Florida, and that Schaefer would have to travel to Florida to obtain cocaine.

Schaefer, this time accompanied by DEA agent Dan Stitt, next met Salazar a few days later in Miami. There Salazar introduced the agents to his cocaine source Alvaro Jaramillo ("Jaramillo"). With Salazar there throughout the meeting, Jaramillo and Schaefer discussed both the price and availability of cocaine. Jaramillo told Schaefer that he could obtain cocaine in 400 to 500 kilogram shipments at $19,000 per kilo F.O.B. Florida ($5,000 more per kilo if Schaefer required Illinois delivery), but that he would need at least three days' notice to arrange delivery. To facilitate further contact Schaefer gave Jaramillo his beeper number, and Jaramillo offered up Salazar's telephone number for Schaefer's use in any further communications.

After Schaefer returned to Illinois he had a number of telephone conversations with Salazar to arrange a further meeting at which Schaefer would purchase a cocaine sample. Schaefer, this time accompanied by agent Kelly Cain ("Cain"), then returned to Florida to meet with Salazar and Jaramillo. After that meeting Salazar and Jaramillo tried to arrange for the cocaine delivery but were unsuccessful because--as they told Schaefer--their source was occupied in unloading a shipment of cocaine up the coast. Success in securing the cocaine did not come the next day either, and Schaefer then agreed to fly back to Illinois and to take delivery in Chicago.

Again a number of phone conversations followed Schaefer's return to Illinois, as the result of which Schaefer agreed to buy 30 kilograms of cocaine from Salazar and Jaramillo if they were able to deliver the drugs in Chicago. Later Salazar and Jaramillo did locate cocaine in Chicago, so they notified Schaefer and negotiated for the delivery in Springfield, Illinois of several shipments of 3 to 5 kilograms each.

Before the planned Springfield delivery, agents in Chicago watched Salazar and Jaramillo drive to a gas station. Once there Jaramillo--together with an unidentified person--entered a different car and drove around the block. Agents then observed Jaramillo leave the car while carrying a brown shoe bag and then return to the first car where Salazar was waiting. From there Salazar and Jaramillo drove back to the hotel where they had stayed, then left for Springfield.

In Springfield Jaramillo (who was driving) and Salazar went to a parking lot to meet agents Schaefer and Cain. Cain walked toward the passenger's side of the car, while Schaefer approached the driver's side. Through the car window Schaefer saw a shoe bag on the floor beneath Jaramillo's feet. Each of Salazar and Jaramillo said that "they" had brought the cocaine, and both of them asked whether Schaefer had the purchase price. Schaefer responded that he had the money across the street and left, purportedly to get it.

Instead a prearranged arrest signal was given, and other law enforcement officials arrested Salazar and Jaramillo, seizing the shoe bag. They found that the bag contained one kilogram of 97% pure cocaine in a type of packaging that suggested direct delivery from the manufacturer.

With that evidence before the jury, Salazar was found guilty on both the conspiracy count and the substantive drug count. At sentencing Salazar contested the attribution to him in the presentence investigation report, for Guidelines purposes, of 15 kilograms of cocaine. That argument was rejected by the district judge, who sentenced Salazar at the midpoint of the 151-month to 188-month range established by that reading of the Guidelines. Salazar filed a timely notice of appeal from his conviction and sentence, and we have jurisdiction pursuant to 18 U.S.C. § 3742(a)(2) and 28 U.S.C. § 1291.

Evidentiary Sufficiency

As to Salazar's challenge to the sufficiency of the evidence, he confronts a familiar and extraordinarily difficult hurdle: Our inquiry is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1978)). That inquiry permits of only one answer--an affirmative one--as to each of the two charges.

1. Conspiracy

We treat with the conspiracy count first, and it need not long detain us. Conspiracy under 21 U.S.C. § 846 is simply an agreement between two or more individuals to commit an offense in violation of the Controlled Substance Act. To establish that agreement the government must prove beyond a reasonable doubt that the defendant both knew of the conspiracy and intended to associate himself or herself with the criminal scheme (United States v. Sullivan, 903 F.2d 1093, 1098 (7th Cir.1990) exemplifies a myriad of cases so holding). And such proof is frequently contrasted with the type of lesser showing that will not suffice--a contrast that we expressed in United States v. Paiz, 905 F.2d 1014, 1020 (7th Cir.1990) (citations omitted):

Evidence of "mere association with conspirators, knowledge of the conspiracy, and presence during conspiratorial discussions," without more, will not do the trick. Evidence must be presented "to support the inference that the defendant in some way joined and participated in the conspiratorial scheme."

It would be difficult to imagine a less promising case than this one for launching an attack on a conspiracy conviction. Salazar was intimately connected with the contemplated major dealings in cocaine from the time he introduced Agent Schaefer to Jaramillo, continuing through the numerous discussions about shipments and sales of the drugs (indeed, the record contains fully 57 telephone conversations involving Salazar in addition to the several face-to-face meetings), and ultimately culminating in the delivery of one kilogram that was aborted only by the arrest signal that caught Salazar and Jaramillo in the agents' net. On this record any acquittal could only have reflected an act of juror nullification. ¹

2. Possession with Intent To Distribute

Though Salazar concedes that the concept of constructive possession suffices to sustain a conviction for narcotics possession under 21 U.S.C. § 841(a)(1) (see, e.g., United States v. Briscoe, 896 F.2d 1476, 1522 (7th Cir.1990)), he maintains on appeal that he should not be held accountable for the one kilo that was actually seized and that hence underpins Count 2. In essence he argues that it was Jaramillo who controlled the cocaine, and that it would be improper--based on a constructive possession theory--to convict Salazar, who neither owned nor drove the car in which the contraband was found. Again we see no reason to disturb the jury's rational conclusion that Salazar too "possessed" the cocaine.

In candor, we are puzzled by any need to explore the often murky waters of constructive possession to begin with. In light of the open and shut nature of the conspiracy charge, this case would have seemed a most obvious candidate for a Pinkerton approach (Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946)), under which co-conspirator Jaramillo's unquestioned direct possession of the cocaine would also support Salazar's conviction on the substantive charge of possession with intent to distribute. But for whatever reason, the jury instructions did not present the easy Pinkerton alternative route to a guilty finding on that charge. And of course we are not about to rewrite the history of the case on that score--in that respect Robert Frost's The Road Not Taken certainly delivers the right message for appellate review of criminal cases.

There is however a path that was marked out for the jury and that supports Salazar's conviction without our having to examine the legal meaning of "possession." Drawing on Instruction 5.08 of the form instructions drafted by the Committee on Federal Criminal Jury Instructions of the Seventh Circuit (1980), the jury instructions in this case contained this unexceptionable statement of aider-and-abettor law:

Any person who knowingly aids, abets, counsels, commands, induces or procures the commission of a crime is guilty of that crime. However, that person must knowingly associate himself with the criminal venture, participate in it, and try...