U.S. v. Torres, 91-3839

• Decision Date: 08 October 1992
• Docket Number: No. 91-3839,91-3839
• Citation: 977 F.2d 321
• Parties: 36 Fed. R. Evid. Serv. 1214 UNITED STATES of America, Plaintiff-Appellee, v. Dennis TORRES, a/k/a Danny Torres, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 321

977 F.2d 321

36 Fed. R. Evid. Serv. 1214

UNITED STATES of America, Plaintiff-Appellee, v. Dennis TORRES, a/k/a Danny Torres, Defendant-Appellant.

No. 91-3839.

United States Court of Appeals Seventh Circuit.

Argued May 26, 1992.

Decided Oct. 8, 1992.

Joseph R. Wall, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Michael J. Backes (argued), Milwaukee, Wis., for defendant-appellant.

Before BAUER, Chief Judge, and COFFEY, Circuit Judge, and WOOD, Jr., Senior Circuit Judge.

COFFEY, Circuit Judge.

Dennis Torres was charged with intentionally threatening a federal witness in violation of 18 U.S.C. § 1513. At trial the government introduced evidence of prior acts of violence by Torres under Federal Rule of Evidence 404(b), alleging that this evidence, though unrelated to the charged crime, was introduced solely to establish Torres's intent when making the threats. A jury found him guilty, and the court, departing upward from the Sentencing Guidelines, sentenced him to 85 months in prison. Torres now challenges the admission of the prior acts evidence introduced to prove intent, and the upward departure, and we affirm.

I. BACKGROUND

In August of 1990 a grand jury indicted eleven members of a cocaine distribution ring in Milwaukee, Wisconsin. One of these eleven was Diane Blas, who agreed to cooperate with the government and provide information about the ring. During her interviews Blas told the government that she and her husband had sold half-ounce packages of cocaine to Dennis Torres. She also revealed that Torres had been involved in the "Georgia Stop," during which he and Blas's husband, along with their travelling companions, were stopped by a Georgia state trooper who discovered two ounces of cocaine in one of the caravan vehicles. Torres had not been named in the conspiracy indictment, but he told police that he knew Blas was cooperating with the authorities and had informed them of his drug-related conduct.

On the morning of March 5, 1991, Juan Glarza, Diane Blas's father, was working at his wife's grocery store. Also present was Torrey Bodie, a salesman who was taking Glarza's grocery order. Around 8:15 a.m. Dennis Torres entered the store and asked for Diane Blas. Juan Glarza told him that Diane was not there. Torres became visibly agitated, and, in extremely vulgar and menacing language, threatened to severely harm Blas, Glarza, and Glarza's store. He told Glarza to tell Blas that he (Torres) was going to kill her for naming him to authorities, and then said that he also planned to destroy Glarza and the grocery store.

After making the threats Torres backed towards the door and reached into his coat pocket. Fearful that he might be reaching for a gun, Glarza pulled his gun from behind the grocery counter and fired a shot into the floor near Torres. Part of the floor or the bullet ricocheted into Torres's leg. At this time Torres grabbed Bodie and used him as a shield as he exited the store and jumped into a waiting getaway car.

A grand jury indicted Torres on one count of violating 18 U.S.C. § 1513, which provides that:

(a) Whoever knowingly engages in any conduct and thereby causes bodily injury to another person or damages the tangible property of another person, or threatens to do so, with intent to retaliate against any person for--

* * * * * *

(2) any information relating to the commission or possible commission of a Federal offense ... given by a person to a law enforcement officer;

or attempts to do so, shall be fined not more than $250,000 or imprisoned not more than ten years, or both.

The government's theory at trial was that Torres intentionally threatened the property and persons of Juan Glarza and Diane Blas in retaliation for Blas's informing the federal prosecutors about his drug activity. To buttress this theory the government, in addition to presenting Glarza's and Bodie's versions of the grocery store incident, also introduced evidence of two prior acts committed by Torres in order to prove his intent to retaliate against Blas. Torres objected to the admission of evidence regarding these acts, arguing that it was being introduced for an improper purpose; namely, revealing his propensity toward criminal behavior. See Fed.R.Evid. 404(b). The court overruled the objection, finding that the evidence was properly introduced for the purpose of demonstrating his retaliatory intent at the time of the threats, and was not being used merely to show a penchant for crime.

The first prior act was described by the mother of Torres's child, Lisetta Miranda. Miranda testified that in April of 1989, when she was living with the defendant, someone stole a television and VCR from their apartment. She heard on the street that Jose Santiago had done it, and so advised Torres. The two of them then drove to a car wash where they observed Santiago. Torres got out of his vehicle, argued with Santiago, and thereafter drew a gun and opened fire. Miranda could not remember where Torres was pointing the gun as he fired, but officer William Sincere later found bullet holes in the overhead door and wall of the car wash. No charges were filed in connection with this incident.

The second prior act introduced to prove Torres's retaliatory intent occurred on September 21, 1989, after reports of a street fight in Torres's neighborhood. Milwaukee police officer Cindy Rosenthal went to investigate the scene of the fight and discovered a partially loaded .22 automatic pistol clip. Approximately half an hour later, while still on the scene, Rosenthal heard shots close by. Witnesses advised her that a large white auto and a damaged silver Nissan automobile were involved in the shooting. Shortly thereafter Officer Rosenthal saw the silver Nissan on a nearby street and ordered the driver to pull over. Two of the car's occupants were arrested after officers saw a gun inside. Thirty-five minutes later, while waiting for a truck to tow the Nissan from the scene, Rosenthal observed the other vehicle (a large white auto) involved in the shooting, pass through an alley right in front of her. She pursued the vehicle until it stopped at a nearby house. Torres got out of the car and Rosenthal ordered him to freeze, after which backup officers instituted a search of his person and vehicle. Torres had about $2,000 cash and two live .22 bullets on his person. He also had two guns, one a .22 caliber revolver, hidden under the armrest cushion in his car. The .22 clip recovered from the fight scene fit the .22 revolver Torres had tucked under the armrest. Torres was charged with two misdemeanor counts of carrying concealed weapons, which charges were pending at the time of the conduct charged herein.

After hearing the evidence of the threats at the grocery store, as well as the car wash shooting and the concealed weapons incident, the jury convicted Torres of intentionally threatening a federal witness. The probation officer calculated the applicable Sentencing Guidelines range using an Offense Level of 20 and a Criminal History category of IV, arriving at a range of 51-63 months. The government moved for an upward departure, contending that a Criminal History category of IV did not adequately reflect the seriousness of the defendant's past criminal conduct nor his likelihood of committing future crimes, as his record evidenced that he had previously engaged in several other criminal acts without being charged or convicted. See U.S.S.G. § 4A1.3. In support of this argument the government through Milwaukee police officer George Irizarry presented evidence at the sentencing hearing of Torres's prior criminal activity that it believed more accurately reflected the true extent of his criminal history. Irizarry, a gang crimes specialist, knew Torres and testified as to three incidents involving Torres where he was the investigating officer, specifically: (1) a 1988 gang-related battery where Torres allegedly beat a rival with a pipe; the charge was dismissed when the victim left the city in fear and his brother was too scared and intimidated to testify; (2) a 1988 strong-armed robbery and beating of a rival gang member during which Torres allegedly taunted the victim ("We got your gold, punk") with his theft of an expensive gold chain; the robbery charge was pending at the time of trial and (3) a 1989 act of criminal damage to property, wherein Torres allegedly went to a rival gang member's house in the company of other gang members and helped destroy the rival's mother's car with concrete chunks; Torres was charged with criminal damage to property and later acquitted. The government also relied on the car wash shooting, for which no charges were filed, and the concealed weapons incident, for which charges were pending, as proof that the Guidelines underestimated the defendant's true dangerousness.

The court was of the opinion that the evidence presented at the sentencing hearing and at trial was sufficient to allow it to consider all five acts (the battery, the robbery, the criminal damage to property, the car wash shooting, and the concealed weapons incident) in sentencing Torres. It found that if he were convicted for these acts they would add a maximum of 11 points to his Criminal History score under Guideline §§ 4A1.1 and 4A1.2; two each for battery and criminal damage to property, three each for robbery and the car wash shooting (reckless endangerment), and one for carrying concealed weapons. These extra points would bring his Criminal History score to 19. Thus, according to the court, he merited the same treatment as someone in Criminal History category VI. Keeping the same Offense Level of 20, this change in the Criminal History category would increase his sentencing range to 70-87 months. The court proceeded to sentence Torres to 85 months, to be followed by three years of supervised release.

II. ISSUES

Torres raises two issues on appeal: (1) Did the district...