U.S. v. Valencia

• Decision Date: 16 July 1990
• Docket Number: 89-1236,Nos. 89-1235,s. 89-1235
• Citation: 907 F.2d 671
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Javier VALENCIA and Ivan Dario Martinez-Valencia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 671

907 F.2d 671

UNITED STATES of America, Plaintiff-Appellee, v. Jose Javier VALENCIA and Ivan Dario Martinez-Valencia Defendants-Appellants.

Nos. 89-1235, 89-1236.

United States Court of Appeals Seventh Circuit.

Argued Sept. 19, 1989.

Decided July 16, 1990.

Sheila Finnegan and Thomas M. Durkin, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Alan I. Karten, Miami, Fla. and Paul Morris, Coral Gables, Fla., for defendant-appellant.

Before RIPPLE, MANION and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

Defendants Ivan Dario Martinez-Valencia (Martinez) and Jose Javier Valencia (Valencia) appeal their convictions for attempted possession with intent to distribute 100 kilograms of cocaine in violation of 21 U.S.C. Sec. 846. For the following reasons, we affirm.

I BACKGROUND

A. Procedural Posture

Mr. Martinez and Mr. Valencia were charged in a one count indictment with knowingly attempting to possess with intent to distribute roughly 100 kilograms of cocaine in violation of 21 U.S.C. Sec. 846. The defendants were tried jointly before a jury on August 29, 1988, and both were found guilty. On January 27, 1989, the district judge sentenced Mr. Valencia to 235 months imprisonment, followed by 3 years supervised release, and fined Mr. Valencia $407,550. Mr. Martinez was sentenced to 188 months imprisonment, followed by 3 years supervised release.

B. Facts

The underlying facts were disputed at trial. The jury verdict, however, indicates that the jury largely discredited the defendants' testimony and instead credited the testimony of undercover agent Art Martinez of the Cook County Sheriff's Department. Thus, our discussion of the facts is drawn primarily from agent Martinez' testimony. We shall, however, for the sake of completeness, follow this recitation of the facts with a discussion of the defendants' version of the facts.

1. The government's version of the facts

The case involves a negotiated drug transaction between undercover agent Martinez ¹ and Mr. Valencia. On May 11, 1988, "Rodrigo," a confidential police informant, introduced the undercover agent to Mr. Valencia. Mr. Valencia told the agent that he wanted to purchase 150 kilograms of cocaine and was willing to pay a total of 1.95 million dollars for the cocaine. Tr. at 5-6. After the agent agreed to this price, Mr. Valencia proposed to pay for the cocaine in $1,400,000 cash plus two kilograms of white heroin that he recently had imported from Asia. When the agent tentatively agreed to this arrangement, Mr. Valencia explained that he could obtain only $400,000 on such short notice. The agent replied that he would consider giving Mr. Valencia 100 kilograms when the $400,000 was paid, but that he would not have the remainder delivered until he saw the rest of the cash. Mr. Valencia then suggested that they drive to his residence so that he could show the agent the cash. All three men, Mr. Valencia, the agent, and the informant Rodrigo then drove to Mr. Valencia's residence in Mr. Valencia's truck. Id. at 6-8.

When they arrived at Mr. Valencia's residence in Wheeling, Illinois, Mr. Valencia introduced the men to defendant Martinez. As Mr. Martinez stood approximately five feet away from the other three men, Mr. Valencia explained to the agent that Mr. Martinez was an engineer and that Mr. Valencia had brought Mr. Martinez to the United States from Columbia to build a sophisticated storage area for cocaine. Id. at 12-13. The four men walked into the garage, and Mr. Valencia pointed out a twenty-four inch by twenty-four inch hole cut out of the concrete garage floor. Mr. Martinez entered the hole and began working as Mr. Valencia explained that this storage area would be able to store as much as 1200 kilograms of cocaine. Id. at 16-19.

Mr. Valencia described the storage area in some detail. He explained that a scissor jack underneath the floor would raise and lower a plug by remote control so that no one would be able to detect the hole in the floor. He also stated that he had built three other such storage areas in other residences in the Wheeling area and that each had cost him $40,000. During this discussion, Mr. Martinez was approximately seven or eight feet away, working inside the hole. Id. at 16-19.

Mr. Valencia, Rodrigo, and the undercover agent then left the garage and went into one of the bedrooms of the house. Mr. Valencia took a briefcase out of the closet and showed the agent several bundles of U.S. currency. Mr. Valencia also opened a headboard over the bed and pulled out a bag of cocaine and several more bundles of cash. Mr. Valencia claimed that the cash totalled approximately $200,000, and that he would have the remainder of the cash the next morning. Id. at 21.

As the three men walked back to Mr. Valencia's pickup truck to leave, Mr. Valencia removed the tailgate of the truck and showed the undercover agent a false compartment in the floor of the truck. Mr. Valencia said that the compartment would hold approximately 100 kilograms of cocaine. Mr. Valencia said he used the truck to transport cocaine from one area to another. Id. at 26. The parties agreed to meet the next day to continue the negotiation of their transaction.

On May 12, the day following the initial meeting at Mr. Valencia's house, Mr. Valencia again met with the agent and Rodrigo at a McDonald's restaurant in Wheeling. There Mr. Valencia explained that he was able to gather only $300,000 in cash, but said that he would be able to obtain the remaining cash by approximately 1:00 p.m. that afternoon. The men then agreed to meet that afternoon at the Palwaukee Airport in Wheeling. Id. at 29-30.

At 2:00 p.m. that day, Mr. Valencia and Mr. Martinez drove to the airport in Mr. Valencia's pickup truck to meet the agent and Rodrigo. Mr. Valencia exited the truck, and Mr. Martinez slid over into the driver's seat and drove away. Mr. Valencia, Rodrigo, and the agent drove back to Mr. Valencia's house in the agent's vehicle. A short time later, Mr. Martinez drove up in the pickup truck, beeped the horn, and Mr. Valencia went outside. Mr. Valencia returned to the house with Mr. Martinez, who was carrying a blue flight bag. After Mr. Martinez placed the bag on the table, Mr. Valencia opened it and emptied several bundles of U.S. currency. Mr. Valencia then pulled out a money-counting machine. Mr. Valencia, the agent, and Rodrigo began counting the money, while Mr. Martinez walked about the dining room and looked out the dining room window. Mr. Valencia eventually asked Mr. Martinez to help count the cash, and Mr. Martinez assisted them by removing the rubber bands on the bundles and handing them to the agent to count. The agent asked Mr. Valencia if this money totalled $400,000. Mr. Valencia said it was $200,000, and that the other $200,000 was in the bedroom. After the men had finished counting the approximately $150,000 on the table, the agent activated an electronic arrest signal and both Mr. Valencia and Mr. Martinez were arrested. Tr. at 31-34.

Agents searched the house and seized the following items: $407,500 in cash; a scale; a "scrambler" (a device that precludes the effective taping of phone calls); and Mr. Martinez' diary, which was found to contain electrical diagrams for a garage and some type of detailed mechanical instructions. ²

The government also produced evidence at trial that Mr. Martinez had ordered eight hydraulic jacks for Mr. Valencia and had traveled throughout the country in order to acquire this equipment, even though Mr. Martinez denied knowing the intended use of the equipment. ³

2. Mr. Valencia's version of the facts

Mr. Valencia testified at trial that Mr. Martinez was a friend who was visiting at his home in Wheeling. Tr. at 277. Mr. Valencia also claimed that the house in Wheeling had been occupied by his cousin before he moved in, and that the hole in the garage floor and the hydraulic jack already were there when he moved in. Tr. at 254, 257, 293. Regarding the negotiations with the agent, Mr. Valencia claimed that the discussions were related to an entirely different subject. Mr. Valencia testified that the entire series of negotiations involved an effort to obtain the release of his friend, Diego Munoz, who allegedly was being held hostage in Columbia. He claimed that the money recovered from his residence had been given to him by a person named "Pecos," who was supplying the money for the release of Munoz. Mr. Valencia claimed that he was instructed to meet Rodrigo at the Hinsville Holiday Inn, and that the entirety of his further discussions and negotiations with Rodrigo and the agent related to negotiating the release of Munoz from captivity. Tr. at 259-76.

3. Mr. Martinez' version of the facts

Mr. Martinez testified that he had met Mr. Valencia in Miami at Mr. Valencia's clothing store; some time later, Mr. Valencia had called him from Chicago to request that he buy some mechanical parts and told him that a man named Ramero Gonzales would give him the specifications. Tr. at 321-28. Gonzales instructed Mr. Martinez to purchase some hydraulic lifts and to send the equipment to Oscar Alzante in Chicago. Id. at 328. When difficulties concerning the delivery of the equipment arose, Mr. Martinez traveled in an effort to locate the equipment. Id. at 329-30.

In his appellate brief, Mr. Martinez admits being present "about five feet away" when Mr. Valencia told the agent that Mr. Martinez was building a cocaine storage area. Martinez' Br. at 8. At trial, Mr. Martinez testified that he did not touch or count the money that was delivered to Mr. Valencia's house, Tr. at 339, but in his brief he admits that he "removed rubber bands from the bundles, and handed the bundles to the agent who counted them." Martinez' Br. at 9. Mr. Martinez claims that he did not suspect any criminal activity, and thought that the money was proceeds from the sale of inventory from Mr. Valencia's clothing store. Tr. at 340.

II Mr. Martinez'...