U.S. v. Tringali, s. 94-2681
| Citation | 71 F.3d 1375 |
| Decision Date | 18 December 1995 |
| Docket Number | 94-3760,Nos. 94-2681,s. 94-2681 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph TRINGALI and Ramon Hernandez, a/k/a Alfredo, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Barry Rand Elden, Chief of Appeals, Haywood McDuffie (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for U.S.
H. Elizabeth Kelley (argued), Oak Forest, IL, for Joseph Tringali.
Michael G. Logan (argued), Chicago, IL, for Ramon Hernandez aka Alfredo.
Before CUMMINGS, MANION, and KANNE, Circuit Judges.
A federal grand jury indicted Joseph Tringali and Ramon Hernandez (a/k/a "Alfredo") for conspiring to possess with intent to distribute ten kilograms of cocaine and possession with intent to distribute two kilograms of cocaine. Tringali pleaded guilty to the possession count and was sentenced to 140 months imprisonment and five years of supervised release. Hernandez pleaded not guilty, but following a jury trial he was convicted on both counts and sentenced to a mandatory minimum of twenty years imprisonment. Tringali appeals his sentence and Hernandez appeals his conviction and sentence. We affirm.
In December of 1993, "Mr. Alex," 1 a native of Colombia, called the Drug Enforcement Agency ("DEA") office in Chicago to express his support for the DEA's anti-drug operations in Colombia, especially its role in the recent capture and death of Pablo Escobar, a notorious Colombian drug kingpin. The DEA saw an opportunity to infiltrate drug traffickers and recruited Alex to work as a cooperating individual.
In accordance with his agreement to provide the DEA with information, Alex named three people he suspected of trafficking in narcotics, Fernando Trujillo, Joseph Tringali and Ramon Hernandez. Alex had originally met Trujillo in 1991. During 1991 and 1992 Alex attended several parties with Trujillo, where he met Joseph Tringali and Ramon Hernandez. At one such party, Alex witnessed an argument between Trujillo and two other people regarding a drug debt. After witnessing this argument, Alex's contact with Trujillo waned.
Upon becoming a cooperating individual with the DEA, Alex sought to reestablish his connection with Trujillo. In late December of 1993, Alex attempted to contact Trujillo by using the pager number Trujillo had given him in 1991. Alex's attempts to locate Trujillo were unsuccessful, so he called a mutual acquaintance for suggestions and was informed that Trujillo was in jail, but that "Alfredo" might be able to help him. Alex eventually contacted "Alfredo." Alex testified that he remembered "Alfredo" to be the man named Ramon Hernandez whom he had met earlier through Trujillo.
When Alex contacted Hernandez, he told Hernandez that some foreign friends in Chicago were interested in purchasing cocaine. Hernandez indicated that he would look into the possibility of supplying cocaine. Approximately one week later, Hernandez informed Alex that he had conferred with his suppliers and, that if the deal could be done in California, the price per kilogram of cocaine would be $15,000--$16,000, but, that if done in Chicago, the price would jump to $22,000--$23,000 per kilogram.
Over the next month, Alex and Hernandez negotiated the details of the drug deal. They agreed on an amount of ten kilograms, with delivery to take place in Chicago. They also agreed that Joe Tringali would deliver the drugs to Alex. But Hernandez later restructured the sale, stating that Tringali would start with a delivery of two kilograms of cocaine and if the transaction was successful, the remaining eight kilograms would follow. A few days after that conversation, Hernandez told Alex that Tringali was in Chicago "ready to make the cocaine business." Tringali also called Alex, stating that he was in Des Plaines, Illinois with the cocaine. During his conversation with Tringali, Alex expressed disappointment that he would not receive the entire ten kilograms of cocaine at one time. Tringali responded that they would complete the two kilogram transaction and that Alex would get the eight additional kilograms of cocaine "very soon."
The next day Tringali and Alex met in a parking lot to discuss the logistics of the cocaine transaction, and then proceeded to a motel, where Tringali opened a suitcase and showed Alex two kilograms of cocaine. Alex left the motel ostensibly to retrieve the "buy money" for the cocaine. The DEA then arrested Tringali in the motel room. During the arrest, DEA agents found in Tringali's room a business card with Hernandez's beeper number. Further investigation revealed that Tringali had placed two calls from the Des Plaines motel room to a house located at 545 11th Street, Imperial Beach, California. Hernandez was later arrested fleeing from this Imperial Beach home.
Based on these facts, a federal grand jury returned a two-count indictment charging Tringali and Alfredo (later identified as Hernandez) with conspiracy to possess with intent to distribute ten kilograms of cocaine in violation of 21 U.S.C. Sec. 846, and possession with intent to distribute two kilograms of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Under a plea agreement, the government dropped the conspiracy count, and Tringali pleaded guilty to the possession count. Tringali was sentenced to 140 months in prison and five years supervised release. Tringali appeals his sentence.
Hernandez pleaded not guilty. Following a three-day jury trial, he was convicted on both counts and sentenced to a statutory mandatory minimum of twenty years in prison and five years of supervised release. Hernandez appeals his conviction and sentence.
On appeal, Hernandez asserts that the district court erred in admitting evidence of his 1984 conviction for conspiring to possess cocaine. In addition he claims error for the court's refusal to give a "mere presence" jury instruction. Hernandez also appeals his sentence, claiming first that the district court erred in determining that the conspiracy involved ten kilograms of cocaine, and second, that he was not subject to a 20-year mandatory minimum because the government failed to give him proper notice that it would seek such a sentencing enhancement based on his 1984 conviction for cocaine trafficking.
Tringali joins one aspect of the appeal, claiming the district court erred in sentencing him based on its finding that the conspiracy involved ten kilograms of cocaine. Given the limited nature of Tringali's appeal, we address his contentions within our discussion of the broader questions presented by Hernandez.
At the close of Hernandez's trial, the district court took judicial notice and presented to the jury the fact that in 1984 Hernandez was convicted in the Western District of New York of conspiracy to possess with intent to distribute four kilograms of cocaine. On appeal, Hernandez claims this evidence constituted inadmissible character evidence improperly admitted under 404(b). Rule 404(b) of the Federal Rules of Evidence provides that:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The district court found the evidence of Hernandez's 1984 conviction admissible under Rule 404(b) because it showed knowledge and intent, and the court admonished the jury to consider the testimony for that purpose only. We review the district court's decision for an abuse of discretion. United States v. Lampkins, 47 F.3d 175, 179 (7th Cir.1995).
In determining whether the district court abused its discretion in admitting the above evidence, this court considers whether:
(1) the evidence is directed toward establishing a matter in issue other than the defendants' propensity to commit the crime charged;
(2) the evidence shows that the other act is similar enough and close in time to be relevant to the matter in issue;
(3) there is sufficient evidence to support a finding by the jury that the defendants committed the similar act; and
(4) the probative value of the evidence is not outweighed by the danger of unfair prejudice.
In view of these four factors, the district court did not abuse its discretion by taking judicial notice of Hernandez's 1984 conviction. First, the evidence was directed toward Hernandez's knowledge and intent, and not to show his propensity to commit the crime charged. See United States v. Briscoe, 896 F.2d 1476, 1498-99 (7th Cir.1990) (). Part of Hernandez's defense was that he could not put a large drug deal together. The prior four-kilo transaction showed he had the knowledge and intent to do so. Second, the 1984 conviction was similar in time and manner to the issue presented in this case; both related to cocaine trafficking and both occurred within ten years. See, e.g., United States v. Mounts, 35 F.3d 1208, 1214-15 (7th Cir.1994) (). In fact, the 1984 conviction involved a conspiracy by the key players in this case: Tringali, Hernandez and Trujillo. The evidence also satisfied the third factor, since Hernandez was actually convicted of the proffered similar act. And finally, given the limiting jury instruction the district court did not abuse its discretion in finding that the probative value of the evidence in proving knowledge and intent was not outweighed by the danger of unfair prejudice. Lampkins, 47 F.3d at 180 (...
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