U.S. v. Sanchez-Galvez, SANCHEZ-GALVEZ

• Decision Date: 29 August 1994
• Docket Number: SANCHEZ-GALVEZ,93-1686 and 93-2325,Nos. 93-1665,s. 93-1665
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose, also known as El-Gallo, Lozaro Rosario, and Juan Colon-Sanchez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 829

33 F.3d 829

UNITED STATES of America, Plaintiff-Appellee, v. Jose SANCHEZ-GALVEZ, also known as El-Gallo, Lozaro Rosario, and Juan Colon-Sanchez, Defendants-Appellants.

Nos. 93-1665, 93-1686 and 93-2325.

United States Court of Appeals, Seventh Circuit.

Argued April 20, 1994.

Decided Aug. 29, 1994.

Barry R. Elden, Asst. U.S. Atty., Christopher Cook (argued), Crim. Receiving, Appellate Div., Chicago, IL, for U.S.

David W. Gleicher, Chicago, IL, for Jose Sanchez-Galvez.

Nathan Diamond-Falk (argued), Chicago, IL, for Lozaro Rosario.

Anita Rivkin-Carothers (argued), Chicago, IL, for Juan Colon-Sanchez.

Before BAUER, and CUDAHY, Circuit Judges, and GRANT, District Judge. ^*

BAUER, Circuit Judge.

Jose Sanchez-Galvez ("Sanchez") and Lozaro Rosario were each tried and convicted for conspiracy to possess cocaine with the intent to distribute and for attempted possession of two kilograms of cocaine. In connection with the same transaction, Juan Colon-Sanchez ("Colon") pleaded guilty to one count of conspiracy to possess cocaine with the intent to distribute. Sanchez and Rosario appeal their convictions and Colon challenges his sentence. We affirm their convictions and sentences in all respects.

I.

In April of 1992, Drug Enforcement Agency ("DEA") Agent Kirk Meyer, working undercover, made several attempts to arrange a cocaine transaction through a self-proclaimed narcotics broker named Delfino Zamora. Zamora was finally able to organize a deal in which Meyer would sell between one and five kilograms of cocaine to the defendant Sanchez at a price of $27,000 per kilogram. Meyer was to receive $20,000 per kilogram, with the difference representing Zamora's commission. At 2 p.m. on April 29, after Zamora had repeatedly postponed the transaction, Meyer received a message to call Zamora at the defendant Rosario's home. When Meyer called back, Zamora, who had arrived at Rosario's house with Sanchez, told Meyer that the buyers were getting the money together and that they would meet Meyer at a restaurant on Chicago's south side. Soon after this conversation, Colon arrived at Rosario's house. The group then departed for the meeting place with Colon and Rosario in one car and Sanchez, Zamora, and Sanchez's young son in another car.

After parking their cars at the restaurant parking lot, the four men met briefly and decided they would purchase two kilograms of cocaine. While Zamora and Colon approached Meyer's car in a parking lot across the street, Rosario and Sanchez stayed near the restaurant where their car was parked. Rosario and Sanchez never entered the restaurant and were constantly watching Meyer's car. Meanwhile, Zamora and Colon exchanged greetings with Meyer and a second undercover agent, Louis Dominguez, Jr. The four men went back to Meyer's car. After Colon asked for two kilograms of cocaine, he and Zamora were arrested. Upon being taken into custody, Colon surrendered to the police a shopping bag in his possession which contained over $57,000 dollars in cash. Rosario and Sanchez were apprehended by surveillance officers on the scene.

Zamora was given immunity in exchange for his testimony at trial. Colon, Rosario, and Sanchez were each indicted for conspiracy to possess cocaine with the intent to distribute, and attempt to possess approximately two kilograms of cocaine. Colon pleaded guilty and appeals only his sentence. Rosario and Sanchez were convicted and now appeal their convictions.

II.

A. Expert Testimony

Rosario and Sanchez make several challenges to the admission of expert testimony by DEA agent, Michael Hillebrand. Hillebrand, an agent with the DEA for twenty-one years was allowed to testify as an expert in the field of narcotics transactions. He testified that the presence of several persons, in addition to the buyer and seller, at a narcotics transaction is common and that often those persons serve specific roles. For example, they may provide transportation or protection services, or they might be used to conduct counter-surveillance. Hillebrand also stated that the presence of children at drug deals is increasing in frequency. Finally, Hillebrand testified that parking lots are common venues for narcotics transactions.

Rosario and Sanchez object to the admission of this testimony for several reasons. First, they argue that it is not properly characterized as expert testimony because it is speculative and does not aid the jury in any way. Second, they claim that even if the testimony were otherwise admissible, it should have been excluded in this case because the government did not provide the defense with notice of their intent to call Hillebrand. Finally, Rosario and Sanchez contend that the testimony represents an instance of reversible error because the court suppressed evidence about Hillebrand's record which would have been valuable for impeachment purposes.

We have held on prior occasion that because the clandestine nature of narcotics trafficking is likely to be outside the knowledge of the average layman, law enforcement officers may testify as experts in order to assist the jury in understanding these transactions. United States v. De Soto, 885 F.2d 354, 359 (7th Cir.1989). This type of testimony remains subject to the requirements of Rule 702 of the Federal Rules of Evidence: (1) that the witness be qualified, and (2) that the witness does not speak to matters which are within the knowledge and experience of the jury because such testimony is not helpful. Id. at 361. Rosario and Sanchez contend that the testimony failed the second prong of this test.

Challenges to the admissibility of expert testimony are reviewed for an abuse of discretion. Id. at 359. We find no such abuse here. In De Soto, we affirmed the admissibility of testimony by a DEA agent who described the use of counter-surveillance in drug transactions. The defendants there argued that their actions, which consisted of repeatedly driving around the site of the deal, were perfectly capable of interpretation by the jury and that use of an expert was not helpful to the jury. Rosario and Sanchez make the same argument here.

Any set of facts is capable of some interpretation. Yet, if to the person charged with interpreting them, those facts are somehow intricate in their nature or detail, the inferences drawn may be simply guesswork. Expert testimony provides the trier of fact with an opinion about the inferences which may be drawn from a complex set of facts. United States v. Stevenson, 6 F.3d 1262, 1266 (7th Cir.1993). In this case, Agent Hillebrand's testimony was designed to educate the jurors about drug transactions in general. As a result of his testimony, the jury was able to apply to the evidence alternative theories of which they ordinarily would not have been aware. His testimony in no way precluded the jury from arriving at an innocent explanation for Rosario and Sanchez's activities rather than the more culpable conclusion which they drew instead.

Rosario and Sanchez next argue that because the government did not provide notice that Agent Hillebrand would be offering expert testimony, the evidence should have been excluded under Rule 16. Though they concede that at the time of the trial, Rule 16 required only disclosure of "any results or reports of physical or mental examinations, and of scientific tests or experiments," Rosario and Sanchez contend that the court should have gone beyond the strict language of the rule and looked at the unfairness which resulted from the failure to notify.

This argument is somewhat disingenuous. Rosario and Sanchez acknowledged before the district court that Rule 16 did not require the disclosure which they were seeking. They requested and were granted time to depose Hillebrand and to obtain a rebuttal witness. The record does not reveal any reason to exclude the evidence based on Rule 16 and to the extent that any unfairness resulted, it was remedied by permitting the defense to depose Agent Hillebrand before cross-examination.

Finally, Rosario and Sanchez contend that the government, in violation of the Supreme Court's decisions in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), suppressed evidence about Agent Hillebrand favorable to the defense. In the spring of 1972, Hillebrand was involved in several drug-related arrests in Collinsville, Illinois, which received substantial publicity locally and nationally. Questions and complaints about the legality of the arrests inspired federal authorities to seek indictment of the officers involved. At first, prosecutors did not succeed, but they tried and tried again and the third grand jury finally returned an indictment against the twelve officers. Among the charges was an allegation that the officers had drawn up fictitious arrest reports in order to justify what were illegal arrests. The twelve officers, all represented by privately retained counsel, were all acquitted on every criminal count and also prevailed in the civil suits filed against them. The federal agents then filed successful counter-suits against the Justice Department.

During Agent Hillebrand's direct examination, the prosecution became aware of this incident and immediately brought it to the attention of the court and the defense attorneys. The government made a motion to exclude evidence of any mention of the "Collinsville raids." Rosario's attorney opposed the motion, arguing that the charge of false arrest was probative of truthfulness, and therefore, constituted legitimate impeachment material. Despite Rosario's claim, the court granted the government's motion, holding that the twenty-year lapse in time combined with the overwhelming evidence that the charges were unfounded and baseless, rendered the probative value of this evidence remote.

The Brady doctrine holds that the prosecution is constitutionally obligated to disclose to the...