U.S. v. Vargas

• Citation: 552 F.3d 550
• Decision Date: 31 December 2008
• Docket Number: No. 07-2026.,07-2026.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jasper VARGAS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

552 F.3d 550

UNITED STATES of America, Plaintiff-Appellee, v. Jasper VARGAS, Defendant-Appellant.

No. 07-2026.

United States Court of Appeals, Seventh Circuit.

Argued October 29, 2008.

Decided December 31, 2008.

Richard N. Cox (argued), Office of the United States Attorney, Urban, IL, for Plaintiff-Appellee.

Barry Levenstam, Kristopher R. Kiel (argued), Jenner & Block, Chicago, IL, for Defendant-Appellant.

Before POSNER, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Defendant Jasper Vargas was arrested on November 20, 2004, after police and federal agents discovered 282 kilograms of cocaine concealed within a hidden compartment in the refrigerated trailer that Vargas was using to haul produce. The government sought to introduce evidence at trial that Vargas had, on prior occasions, transported drugs hidden under loads of produce in refrigerated semi-trailers.¹ The district court admitted the evidence under Federal Rule of Evidence 404(b) over Vargas's objection, and on January 31, 2007, the jury convicted Vargas of knowingly possessing more than five kilograms of cocaine with the intent to distribute it in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii). The district court denied Vargas's motions for a judgment of acquittal and for a new trial, and sentenced him to life in prison. Vargas appeals the district court's admission of his prior uncharged drug trafficking activity. We affirm.

I. BACKGROUND

On November 17, 2004, agents from the Drug Enforcement Administration in McCallen, Texas, began conducting surveillance on a refrigerated trailer that they believed would be used to transport drugs to Chicago. The agents first spotted the trailer on a residential street in Alton, Texas, a small town about ten miles north of the Mexican-American border. That afternoon, DEA agents observed Vargas and another individual, Juan Jose Garcia, arrive at the location and connect the trailer to a new tractor. Vargas then drove away with Garcia as a passenger. The agents followed, but when Vargas made a sudden U-turn they turned off the road to avoid being seen.

The agents resumed following Vargas approximately forty-five minutes later. Vargas continued to make several U-turns on small country roads, and the agents suspected that he was conducting counter-surveillance to determine whether he was being followed. Vargas eventually parked at a small roadside restaurant where another individual worked on the refrigeration unit of the trailer. After the work was completed, Vargas drove away.

Later that day, Officer Hector Mendez, a local canine officer, stopped Vargas and the tractor-trailer at the request of DEA agents. Vargas told Mendez the trailer was to be loaded with produce the next day for a delivery to Georgia. After obtaining Vargas's consent, Mendez used his dog to search the interior of the empty trailer. The dog did not react, and Mendez did not find any drugs. Mendez gave Vargas a warning for speeding, and the DEA agents ceased their surveillance.

The next day, November 18, 2004, Vargas picked up a load of produce in Mission, Texas, destined for Karisu Produce in Chicago. Neither the DEA nor local law enforcement was conducting surveillance at the time the trailer was loaded.

On the morning of November 20, 2004, Illinois State Trooper Robert Williams received an alert to "be on the look out" for the tractor-trailer, which bore the name "G & R Trucking." The alert identified Vargas as the anticipated driver. Officer Williams spotted the trailer and pulled Vargas over for speeding. According to Officer Williams, Vargas, who was accompanied by an unauthorized female passenger, looked extremely nervous and was visibly shaking. Vargas provided Williams with the bill of lading, which showed that Vargas had picked up a load of produce in Mission, Texas, and was transporting it to Chicago.

After Williams completed a safety inspection and issued Vargas warnings for speeding and having an unauthorized passenger, he asked Vargas if he could search the trailer. Vargas consented to the search. Williams noticed that some rivets had been replaced on the passenger side of the front of the trailer under the refrigeration unit. He also noticed some nonstandard white caulk on the walls of the refrigeration unit, which indicated to him that it had been altered or modified.

With the assistance of other officers, Williams continued to search the trailer and noticed missing rivets and fresh black caulk on the outside of the trailer. Because of these observations, Williams requested that a drug canine come to the scene. The canine officer walked around the trailer, and the dog detected the presence of drugs. Williams entered the trailer, but was unable to examine the inside of the front of the trailer because of the load of produce.

Officers instructed Vargas to drive the tractor-trailer to the Illinois Department of Transportation yard in Ashkum, Illinois, where the police continued the search. Trooper Michael Banach, who had taken over the investigation, made his way through the load of produce and removed the external cover to the refrigeration unit, but he was unable to remove a second piece of sheet metal. The officers determined that the contents of the trailer needed to be removed to allow for a thorough inspection, but they were unable to do so in Ashkum. At the officers' direction, Vargas drove to Kochel's Towing in Monee, Illinois, where the produce could be unloaded and the trailer fully inspected.

After the officers were finally able to remove the produce and several layers of sheet metal from the refrigeration unit, they discovered a hidden compartment containing 157 numbered bundles wrapped in green cellophane. Later investigation revealed that the bundles contained 282 kilograms of "very high purity" cocaine with a wholesale value of over $5 million. Vargas was placed under arrest.

Before trial, the government filed a "Second Notice of Introduction of Evidence Under Federal Rule 404(b)," indicating that it planned to present evidence of other instances in which Vargas was involved in transporting drugs concealed under cover loads of produce in refrigerated semi-trailers. The government summarized the evidence and explained that it was offered to show "whether the defendant possessed the cocaine `knowingly.'" Vargas opposed the evidence. Although he conceded that it was relevant to knowledge and that it was similar enough to be relevant, he argued that the probative value of the evidence was outweighed by its danger of unfair prejudice.

The district court allowed the admission of the evidence. In a written opinion, the court found that the evidence was relevant to the issue of knowledge, that it was similar and close enough in time to be relevant, and that it was sufficient to support a jury finding that Vargas committed the acts. The district court further found that the probative value of the evidence was not outweighed by the danger of unfair prejudice, because the evidence was "very relevant to the issue of [Vargas's] knowledge." The court noted that the risk of unfair prejudice could be mitigated by a limiting instruction to the jury that it could consider the "other acts" evidence only on the question of Vargas's knowledge.

During Vargas's trial,² the government called various law enforcement officers to testify to the events set forth above. The government also presented the testimony of Natris Morris, who had shared a jail unit with Vargas while they were awaiting trial. Morris testified that Vargas had admitted that he was transporting cocaine in a hidden compartment of a trailer when he was caught. Morris stated that Vargas had expected to be paid between $500 and $1,000 per kilo for transporting the drugs.

Pursuant to the district court's ruling, the government called three witnesses— Mario Martinez, Juan Mendoza, and Officer Alfredo Barrera—to testify to Vargas's other acts. Martinez, a long-time friend of Vargas, testified that in November 2002, Martinez brokered a marijuana delivery for Francisco Arizmendi-Lugo (nicknamed "Pancho"), whom Vargas had introduced to Martinez. Martinez testified that he, Pancho, and Vargas had met at Martinez's ranch in Alton, Texas, to arrange the sale and transportation of fifty-five pounds of marijuana to Cutberto Sandoval in Corpus Christi, Texas. On the day of the sale, Vargas transported the marijuana to Corpus Christi in a refrigerated trailer under a cover load of produce. Martinez and Pancho traveled separately to Corpus Christi, where they met Vargas and Sandoval at an interstate truck stop. Vargas then drove the truck to a different location, where Sandoval took possession of the marijuana. Sandoval purchased the marijuana for $400 per pound, and Pancho paid Martinez $25 for each pound transported.

Juan Mendoza and Officer Barrera testified regarding the transport of a large amount of marijuana in 2003. On January 11, 2003, police officers in southern Texas stopped a tractor-trailer driven by Elio Longoria and carrying Juan Mendoza as a passenger. Barrera, an officer with the Texas Department of Safety, testified that he conducted a search of the refrigerated trailer and found 1,300 pounds of marijuana in bundles hidden in boxes of cabbage. Mendoza and Longoria were arrested.

Mendoza testified that the marijuana seized on January 11, 2003, was destined for Fort Wayne, Indiana. Mendoza explained that Vargas had obtained the tractor-trailer and the two of them had loaded the marijuana and cabbage into the tractor the day before the seizure. Mendoza estimated that he and Vargas would have been paid between $6,000 and $7,000 for their roles in the delivery. Mendoza also testified that a few months before his arrest, he and Vargas had used the same tractor-trailer to transport 200 pounds of marijuana, concealed in produce, from Texas to an unspecified location "up north."

Vargas requested that the district court read a limiting...