U.S. v. Soto-Rodriguez, SOTO-RODRIGUEZ

• Decision Date: 07 October 1993
• Docket Number: SOTO-RODRIGUEZ,Nos. 90-3580,90-3581,s. 90-3580
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jairo, also known as "Jimmy", and Gustavo Calle, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 96

7 F.3d 96

UNITED STATES of America, Plaintiff-Appellee, v. Jairo SOTO-RODRIGUEZ, also known as "Jimmy", and Gustavo

Calle, Defendants-Appellants.

Nos. 90-3580, 90-3581.

United States Court of Appeals, Seventh Circuit.

Argued June 11, 1993.

Decided Oct. 7, 1993.

Zaldwaynaka L. Scott, Asst. U.S. Atty., Office of the U.S. Atty. Criminal Div., Haywood McDuffie (argued), Barry R. Elden, Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

John Thomas Moran, Jr., Chicago, IL, argued for defendant-appellant.

Before EASTERBROOK and MANION, Circuit Judges, and ALDISERT, Senior Circuit Judge. ^*

MANION, Circuit Judge.

Mario Lloyd ran a highly successful cocaine distribution business in Chicago. Jairo Soto-Rodriguez and Gustavo Calle were two loyal and well-paid business associates. The government indicted Lloyd, Soto-Rodriguez, Calle and seven other members of the cocaine distribution ring for conspiring to violate and for violating federal drug and money-laundering statutes. Soto-Rodriguez and Calle were tried separately and convicted. They appeal, challenging the sufficiency of the evidence. They also claim that, if anything, the evidence indicated separate conspiracies rather than one large conspiracy. We affirm.

I. Facts

Like any efficiently managed business, the Lloyd cocaine distribution ring delegated responsibility according to ability. Troy Shelton and Gregory "Sam" Hawkins made drug deliveries. They testified against Soto-Rodriguez and Calle at trial. According to their testimony, Soto-Rodriguez and Calle supplied cocaine and were personally involved in the details of its delivery. Following is a summary of the evidence concerning Soto-Rodriguez and Calle which was adduced at trial.

In September of 1987, Hawkins observed Lloyd and Soto-Rodriguez personally conduct a drug transaction in Lloyd's apartment; they gave ten kilograms of cocaine to a man "Easy" in exchange for $250,000. In March of 1988, Shelton acted as a middleman in a drug transaction between Soto-Rodriguez, Lloyd, and "Easy." Soto-Rodriguez left ten to fifteen kilograms of cocaine in a duffle bag at Lloyd's apartment. Later, Easy came to the apartment, picked up the cocaine, and left a bag full of money. Shelton delivered the money to Soto-Rodriguez, who was waiting in an apartment near Fullerton Avenue in Chicago--near the "El" train tracks and across from a hot dog stand. Soto-Rodriguez counted the money, took his share, and gave the rest to Lloyd.

A week after that transaction, the Lloyd organization provided Shelton and Hawkins with a new tool to conduct their trade: a red 1985 Nissan Maxima with a secret compartment behind the back seat for storing cocaine. The car had a New York registration in the name of "Gustavo Calle." Initially, Shelton and Hawkins would pick up the car from a drug supplier named Alvaro "Ibro" Cano, and would deliver cocaine which was hidden in the secret compartment to Lloyd's customers. They would then bring the money from the day's sales to Lloyd. On one occasion--in April 1988--they used this car to deliver cocaine to a person named "Vaughnee," and then took the proceeds of that sale to Soto-Rodriguez at his apartment near Fullerton.

During the summer of 1988, Shelton and Hawkins twice received cocaine from Soto-Rodriguez at Grant Park in Chicago. In July they met Soto-Rodriguez in the park. He made a telephone call and told them to wait. Soto-Rodriguez's brother then took the Nissan Maxima Shelton and Hawkins were driving and returned with ten kilograms of cocaine in the trunk. Shelton and Hawkins made an identical transaction a few weeks later. They met Soto-Rodriguez in Grant Park, he made a telephone call, and his brother took their car and returned with ten kilograms of cocaine.

To support Shelton and Hawkins' testimony about Soto-Rodriguez, the government presented the owner of the Fullerton apartment. He confirmed that he had rented the apartment--which was near the "El" train tracks and across from a hot dog stand--to Soto-Rodriguez during the relevant time period. The government also presented the testimony of a DEA agent who had examined Lloyd's telephone records. He indicated that fifty calls were made from Lloyd's telephone number to Soto-Rodriguez's telephone and pager numbers between September 19, 1988 and February 9, 1989. The records also showed that six telephone calls were made from Lloyd's car telephone to Soto-Rodriguez's telephone numbers.

In August 1988, a major drug supplier to the Lloyd ring quit supplying cocaine when Lloyd demanded a volume price discount. Ibro Cano then put Lloyd in contact with his "cousin" Gustavo Calle, who could supply large quantities of drugs from New York. Calle was known to Lloyd as the person who held the title to the red Nissan Maxima. Calle had told Cano that he wanted to meet the man who was moving so much product in Chicago. Apparently, Calle became the supplier the Lloyd ring needed to satisfy customer demand. Calle began to travel to Chicago once or twice per week in a Volkswagen Jetta with large quantities of cocaine hidden in a secret compartment underneath the spare tire. He supplied 50-65 kilograms per trip, and charged $15,500 per kilogram. He would deliver the Volkswagen Jetta to Shelton and Hawkins, who would then deliver the drugs to Lloyd's customers. On November 1, 1988, Calle transported 60 kilograms of cocaine to Chicago for distribution by Hawkins and Shelton.

All went well between Lloyd and Calle until December 1, 1988. On that day, the FBI arrested Shelton as he drove the Nissan Maxima to complete a drug transaction. The FBI confiscated the car and its contents: $274,000 in cash and 24 kilograms of cocaine. The cash and cocaine belonged to Calle. Lloyd agreed to repay Calle for the lost cocaine and money but then got second thoughts. He blamed Calle for the bungled sale, attributing it to Calle's refusal to supply an additional car. Lloyd and Calle took their dispute to an individual named Rubin and two other Colombians--a form of binding arbitration in the drug business. Rubin advised Lloyd that he owed Calle $640,000. Lloyd borrowed $100,000 from Hawkins to begin payment on his debt. He also stepped up deliveries. He introduced Calle to some of his customers, who agreed to increase the price they charged to users, and to give Calle the overage. By the time he was arrested, Lloyd had paid $400,000 toward his debt.

To support Shelton and Hawkins' testimony about Calle, the government presented telephone records indicating that between September 10, 1988 and February 9, 1989, fifty-eight telephone calls were made from Lloyd's number to Calle's telephone and beeper. The government also presented testimony regarding the Volkswagen Jetta and the Nissan Maxima. Records concerning the Nissan Maxima revealed that Calle originally purchased the car; his driver's license and social security numbers appeared on the bill of sale. Later, at Lloyd's suggestion, the car was retitled in the name of "Dodd Blandon" to avoid suspicion if Shelton--a non-Hispanic--was stopped by the police. The government also produced Calle's address book, which included the names and corresponding telephone numbers for several members and customers of the Lloyd organization. ¹

The grand jury indicted Lloyd, Calle, Soto-Rodriguez and seven other members of the Lloyd gang on August 15, 1989. The case against Soto-Rodriguez and Calle proceeded separately from the other defendants. After the presentation of evidence, they asked the court to provide the jury with a multiple conspiracy instruction; the court refused. The jury returned a verdict against both defendants on Count I, which charged conspiracy with intent to distribute at least 1500 kilograms of cocaine in violation of 21 U.S.C. § 846. The jury also returned a verdict against Calle on Count VII, which charged possession with intent to distribute approximately 60 kilograms of a mixture containing cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. However, the jury could not reach a verdict on the only other count concerning Soto-Rodriguez or Calle--Count III, which charged Soto-Rodriguez with possession with intent to distribute approximately 15 kilograms of a mixture containing cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Soto-Rodriguez and Calle appeal, contending: 1) that the evidence was insufficient to convict on Counts I and VII; 2) that a variance existed between the indictment and the evidence; and 3) that the district court erred in refusing to give a multiple conspiracy instruction.

II. Analysis

When a defendant appeals his conviction by challenging the sufficiency of the evidence, we consider all the evidence and all reasonable inferences that can be drawn from the evidence in the light most favorable to the government. United States v. Jackson, 935 F.2d 832, 840 (7th Cir.1991). We will affirm if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Penson, 896 F.2d 1087, 1093 (7th Cir.1990). A conspiracy is a "combination or confederation between two or more people formed for the purpose of committing, by their joint efforts, a criminal act." United States v. Mayo, 721 F.2d 1084, 1088 (7th Cir.1983). In this case a jury decided that...