U.S. v. Sandoval-Curiel

• Decision Date: 21 March 1995
• Docket Number: SANDOVAL-CURIE,No. 93-3813,D,93-3813
• Citation: 50 F.3d 1389
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseefendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1389

50 F.3d 1389

UNITED STATES of America, Plaintiff-Appellee, v. Jose SANDOVAL-CURIEL, Defendant-Appellant.

No. 93-3813.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 14, 1994.

Decided March 21, 1995.

Barry Rand Elden, Asst. U.S. Atty., Haywood McDuffie (argued), Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Ronald J. Clark (argued), Chicago, IL, for defendant-appellant.

Before COFFEY, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

Jose Sandoval-Curiel and five others were charged with conspiracy to possess with the intent to distribute cocaine, distribution of cocaine, and use of a firearm during and in relation to the commission of a drug trafficking offense. 18 U.S.C. Sec. 924(c); 21 U.S.C. Secs. 841(a)(1), 846. Mr. Sandoval was convicted of all three counts. He was sentenced to concurrent terms of 97 months of imprisonment on each of the two drug counts and to a consecutive term of 60 months of imprisonment on the firearm count. On appeal, Mr. Sandoval challenges his firearm conviction.

He submits that the district court erred in giving a Pinkerton instruction to the jury and that the instruction failed adequately to advise the jury of the theory of vicarious liability under the Pinkerton doctrine. See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). We affirm.

I BACKGROUND

In 1992, a government informant, Domingo Alvarez, contacted Salvador Negrete. Alvarez indicated that he was interested in purchasing 25 kilograms of cocaine. He also stated that he was looking for a source to supply large amounts of cocaine on a regular basis. Negrete agreed to find a source of cocaine for Alvarez and thereafter asked his neighbor, Mr. Sandoval, whether he knew of anyone who could supply cocaine to Alvarez. Mr. Sandoval stated that he would check with his "compadre," co-defendant Jose Lopez-Saucedo ("Saucedo"). Mr. Sandoval later informed Negrete that Saucedo would sell him four kilograms of cocaine for $104,000. Sandoval told Negrete that he would have to meet Saucedo at Saucedo's residence for further negotiations.

While Negrete and Mr. Sandoval were at Saucedo's apartment, Saucedo told Negrete that he needed to see the purchase money first and further requested that the deal take place in the apartment. Co-defendant Jose Lopez-Loera ("Loera") explained that, because of the duplicity of other purchasers, he and Saucedo had lost four kilograms of cocaine one week earlier, and on two other occasions, they had lost ten pounds of marijuana and another five to six kilograms of cocaine. Later, the defendants negotiated telephonically with Alvarez about the location for the contemplated transaction. Alvarez preferred the parking lot; the defendants insisted on the apartment. The parties eventually agreed that the sale would take place on the street in front of Saucedo's apartment. They were to exchange two vehicles; one vehicle would contain the drugs; the other would contain the $104,000 payment.

Thereafter, Mr. Sandoval examined the $104,000 at a nearby parking lot and discussed with his co-defendants how to proceed with the transaction. Saucedo suggested that, because of their previous losses, they needed to take precautions for this transaction. He stated, "all these things have been happening to us. We got to think of something to do this time...." Tr. at 588. He suggested that perhaps they "should block the streets" by stationing a van at either end of the block to prevent the buyer from escaping with the drugs without paying. Mr. Sandoval and Loera agreed to the suggestion. Loera circled the block and then parked his van, with the engine running, at a corner on one end of the block. Mr. Sandoval moved his van and parked it at the other end of the block. Meanwhile, Saucedo placed the cocaine in the vehicle driven by Negrete. ¹ Alvarez and another undercover agent arrived shortly thereafter in a vehicle that was to be exchanged with the vehicle containing the cocaine. As soon as the arrest signal was given, Officers Guiffre and Meyer pulled their car behind Loera's van and arrested him. They recovered from Loera's pocket a Raven .25 caliber semi-automatic pistol fully loaded with a live round of ammunition in its chamber.

According to Officer Guiffre, Loera stated, after being advised of his Miranda rights, that he had the firearm because "he had heard that people were sometimes robbed during deals and that there was a lot of money involved in this deal." Tr. at 1159. Loera also stated, according to Officer Guiffre, that he did not know how to use the pistol and that the pistol had been given to him by someone else. Prior to trial, Loera and Saucedo violated their bail conditions and became fugitives. Mr. Sandoval was tried with two other co-defendants.

II DISCUSSION

Mr. Sandoval challenges his firearm conviction under 18 U.S.C. Sec. 924(c). He contends that he should not be held vicariously liable for Loera's possession of the pistol. In Pinkerton v. United States, the Supreme Court of the United States held that in a conspiracy " 'an overt act of one [conspirator] may be the act of all without any new agreement specifically directed to that act.' " 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946) (quoting United States v. Kissel, 218 U.S. 601, 608, 31 S.Ct. 124, 126, 54 L.Ed. 1168 (1910)). A defendant is responsible for a substantive offense committed by his coconspirators unless the criminal act "was not in fact done in furtherance of the conspiracy, did not fall within the scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement." Id. at 647-48, 66 S.Ct. at 1184. This rule applies even if the defendant does not participate in the substantive offense or have any knowledge of it. Id. at 647, 66 S.Ct. at 1184. Under this doctrine, we have held that firearm possession by one conspirator, pursuant to 18 U.S.C. Sec. 924(c), may be imputed to other members of the drug conspiracy, unless the possession was not a natural or reasonably foreseeable consequence of the conspiracy. United States v. Edwards, 36 F.3d 639, 644 (7th Cir.1994); United States v. Williams, 31 F.3d 522, 526 (7th Cir.1994); United States v. Carson, 9 F.3d 576, 591 (7th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 135, 130 L.Ed.2d 77 (1994); United States v. Gutierrez, 978 F.2d 1463, 1467 (7th Cir.1992); United States v. Diaz, 864 F.2d 544, 549 (7th Cir.1988), cert. denied, 490 U.S. 1070, 109 S.Ct. 2075, 104 L.Ed.2d 639 (1989).

Mr. Sandoval was convicted of the underlying drug conspiracy. He does not challenge the sufficiency of the evidence demonstrating his membership in the conspiracy. He questions whether the government proved beyond a reasonable doubt that Mr. Sandoval's coconspirator Loera used or carried a firearm in furtherance of the conspiracy, and whether carrying the weapon was a reasonably foreseeable or natural consequence of the conspiracy. In reviewing for sufficiency of the evidence, this court considers the evidence and accompanying inferences in the light most favorable to the government. We shall not disturb the jury's finding unless the record is devoid of any evidence from which a jury could find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); United States v. Wilson, 31 F.3d 510, 513-14 (7th Cir.1994).

Mr. Sandoval submits that, other than a single hearsay statement, there is no evidence establishing that Loera's possession of the gun was a part of the conspiratorial plan. The hearsay statement to which Mr. Sandoval refers is Officer Guiffre's testimony that Loera admitted upon his arrest that the gun was to protect the group from being robbed. Mr. Sandoval did not object to the admission of the statement at trial, and thus any argument that the hearsay evidence was untrustworthy is waived and reviewable only for plain error.

Because Loera's statement was made after he had been arrested and thus not "during the course and in furtherance of the conspiracy," see Fed.R.Evid. 801(d)(2)(E), it is hearsay evidence. See United States v. Curry, 977 F.2d 1042, 1057 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1357, 122 L.Ed.2d 737 (1993). The statement, however, was admissible as a statement against penal interest under Federal Rule of Evidence 804(b)(3), which allows for an exception to the hearsay rule where the declarant is unavailable as a witness, and corroborating circumstances exist indicating the trustworthiness of the statement. See United States v. Hamilton, 19 F.3d 350, 357 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 480, 130 L.Ed.2d 394 (1994); United States v. Gio, 7 F.3d 1279, 1288 (7th Cir.1993). The declarant Loera was unavailable as a witness because he was a fugitive. The statement, however, was sufficiently trustworthy: Loera made the statement after being advised of his Miranda rights, and nothing indicates that the statement was made in an attempt to curry favor with law enforcement officers. See United States v. Garcia, 986 F.2d 1135, 1140 (7th Cir.1993).

Even without the hearsay statement, moreover, there is ample evidence to prove that Loera's possession of the gun was a natural or reasonably foreseeable consequence of the conspiracy. This court has noted that it is reasonable for a jury to conclude that the presence of firearms in transactions involving a sizeable amount of money or drugs is reasonably foreseeable. United States v. Allen, 930 F.2d 1270, 1275 (7th Cir.1991). ² The drug industry is by nature dangerous and violent, and the jurors are permitted to use their common sense in concluding that, in a large-scale transaction, the presence of firearms is foreseeable. ³

On the record in this case, the jury was entitled to infer, based on the...