U.S. v. South

• Citation: 28 F.3d 619
• Decision Date: 29 June 1994
• Docket Number: No. 93-1796,93-1796
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Samuel H. SOUTH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 619

28 F.3d 619

UNITED STATES of America, Plaintiff-Appellee, v. Samuel H. SOUTH, Defendant-Appellant.

No. 93-1796.

United States Court of Appeals Seventh Circuit.

Argued Feb. 11, 1994.

Decided June 29, 1994.

Madeleine S. Murphy, Asst. State's Atty. (argued), Office of the U.S. Atty., Criminal Div., Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Charles J. Durham, Edward R. Vrdolyak, Ltd., Chicago, IL (argued), for defendant-appellant.

Before CUMMINGS, CUDAHY and MANION, Circuit Judges.

MANION, Circuit Judge.

Samuel South ("South") and Rubin Lopez-Ortiz a/k/a "Sanchez" ("Sanchez"), were charged in a two-count indictment with conspiring, between themselves as well as with others known and unknown to the grand jury, to possess with intent to distribute approximately 156 kilograms of cocaine, and attempt to possess with intent to distribute the same amount of cocaine, all in violation of 21 U.S.C. Secs. 841(a)(1) and 846. After a two- day bench trial, South was found guilty on both counts. Following the district court's verdict, South, pursuant to Fed.R.Crim.P. 33, filed a combined motion for new trial or, in the alternative, for judgment of acquittal, which the district court denied. The district court sentenced South to concurrent terms of 188 months imprisonment on both counts, to be followed by five years supervised release. In his direct appeal, South raises four arguments, including a challenge to the sufficiency of the evidence in support of his convictions for conspiracy and attempt, and a challenge to the effectiveness of trial counsel. For the following reasons, we reject South's contentions and affirm the judgment of the district court.

I.

A. Background

On August 17, 1988, customs officials became suspicious of three wooden crates stored in the Pan Am Freight Terminal at O'Hare International Airport. The crates were very large and showed no country of export. Finding this unusual, the customs officials checked the airway shipping bill. The airbill stated that the shipment had come from Panama and, further, that no value had been declared, even though the cost of shipping the crates came to $4,934.00.

The consignee listed for the shipment was Chicago Industrial Import and Export ("Chicago Industrial"). Customs officials ran a computer check on Chicago Industrial and found that it had not previously imported into the United States through United States Customs. Customs officials called directory assistance to obtain a telephone number for Chicago Industrial, and found that none existed. The airbill listed a telephone number for Chicago Industrial which matched that of a public phone located at Pass, Inc., a car wash owned and operated by South. Further investigation revealed that the address listed for Chicago Industrial closely matched the address of Pass.

Customs officials next opened up one of the three crates. Inside, they found packages containing lava stone grinding wheels in several different sizes. One of the officials testified that an odor resembling glue and/or vinegar emanated from the crate. The officials next broke open one of the grinding wheels and found inside a white substance in a plastic package wrapped in aluminum foil. Field tests demonstrated that the white powder was cocaine.

Customs officials contacted Agent Joseph Alkus, Special Agent of the Organized Crime Drug Enforcement Task Force, to inform him of their discovery. Agent Alkus, along with Agent Tucci of the DEA, went to the warehouse to examine the shipment. When they arrived, the customs officials were in the process of examining the grinding wheels contained in the crates. Agents Alkus and Tucci observed the customs officials drill through the grinding wheels. If white powder was discovered in a grinding wheel, it was broken open. As it turned out, all of the twelve-inch grinding wheels contained packages containing cocaine. The parties stipulated at trial that the amount of cocaine contained in the grinding wheels was 156 kilograms.

Later that same day, the DEA arranged for a controlled delivery of the three crates. In preparation, the DEA agents installed a beacon device which would alert the agents when the crates were opened. The next day, August 19, 1988, the three crates were dropped off at Pass and taken inside for storage. DEA agents maintained surveillance of the building until August 20, 1988.

After nobody came to pick up the crates, DEA agents went inside Pass to have a talk with South. The agents told South they wanted some information about the shipment that had been received the previous day. South told the agents that the shipment was received on behalf of Mr. William King, the owner of Chicago Industrial. According to South, King leased one of the offices at South's car wash. South told the agents that King had called the day before to arrange delivery of the shipment. South told the agents that pursuant to an arrangement with King, South had paid for the shipment and was storing it for King. South said that he had been unsuccessful in his attempts to contact King.

At this point the agents told South that the shipment contained cocaine and requested that agents be permitted to stay on the premises and conduct surveillance. South agreed to the agents' request. Next, the agents, pursuant to a warrant, conducted a search of South's car wash. During the search, South directed the agents to the office purportedly leased by King. During the search of King's office, South provided the agents with a lease agreement between him and King which ran from June 1, 1988 to June, 1989, and which was purportedly signed by King. While searching King's office, agents discovered a letter from Burlington Northern Railroad, addressed to a Mr. Lopez in Houston, Texas, with a copy sent to Mr. W. King, Jr. at Pass, Inc., indicating that a previous shipment had been sent to Chicago Industrial. Agents also discovered carbon copies from two cashier's checks, one for Robinson Enterprises in the amount of $620.00, and the other for the United States Customs, in the amount of $429.27. After the search, Agent Alkus wrote down his name, telephone and beeper number on the back of one South's business cards. Agent Alkus told South to contact him should King happen to call.

King never came by. In the meantime, the agents met with South to obtain more information about King. South told the agents that he had met King at the race track. At the time they met, South was behind in his rent at the car wash. South proposed that King sublease some office space at the car wash. Shortly after King started leasing the office space, he informed South that he was expecting a shipment on or about August 22, 1988, and that South should contact a man named Sanchez in order to obtain some cashier's checks for the brokerage and customs fees for the shipment. During this interview, South provided the agents with an address for King. A team of agents later went to this address. No Mr. King lived there. Following another meeting with South a couple of days later, Agent Tucci attempted a background check on King with the Chicago Police, the DEA and local utility records, but was unable to locate anyone by that name. Realizing that there probably was no such person, the DEA called off the surveillance and took the crates into custody on September 2, 1988.

Meanwhile, on September 24, 1988, a Lebanese national named Michael Zagheib was arrested in Houston following an attempted delivery of 83 kilograms of cocaine to an undercover DEA agent. At the time of his arrest, Zagheib had in his possession one of South's business cards--the very same card which had written on it the name, telephone and beeper numbers of Agent Alkus. Zagheib also had in his possession a receipt from a Chicago hotel bearing the name Roger Saenz (who, as it turns out, is Sanchez). Zagheib subsequently pleaded guilty to the attempted cocaine delivery and agreed to cooperate with the government in its investigations of cocaine trafficking. He further agreed to testify for the government in any criminal proceedings that resulted from such investigations. The following facts are based on Zagheib's testimony.

In 1987 Zagheib moved to Colombia. Shortly after his arrival, Zagheib became involved in the drug business of Michele Khoury, another Lebanese national who was also living in Colombia. In September of 1988, Zagheib, on behalf of Khoury, flew from Colombia to Houston, to arrange a drug transaction unrelated to the one at issue in this case. Khoury also directed Zagheib, during this trip, to check on a shipment of cocaine that had been packaged in wheel grinding stones and shipped to Chicago. Khoury asked Zagheib to contact Khoury's broker for the Chicago shipment, Roger Saenz, and make arrangements with him to ship the cocaine from Chicago to Beirut, Lebanon.

When in Houston, Zagheib telephoned Saenz, who subsequently flew down to Houston to discuss the shipment of cocaine. Zagheib testified that during their meeting, Saenz told Zagheib that the cocaine was packaged in three large crates which were being stored in a warehouse owned by a person named "Sam." Zagheib asked Saenz if this "Sam" could be trusted, to which Saenz said that he knew him well, trusted him and had done business with him in the past.

Following this meeting, Saenz flew back to Chicago to make arrangements for shipping the cocaine to Beirut. By this time, however, the DEA had already removed the cocaine from Pass. Not finding the cocaine at Pass, Saenz flew back to Houston (where Zagheib was staying) and informed Zagheib that the shipment was gone. Saenz told Zagheib that he suspected "Sam" was involved in the disappearance. At Khoury's directions, Zagheib flew back to Chicago with Saenz to determine what had happened to the missing cocaine. In Chicago, Zagheib and Saenz checked into a motel room registered in...