U.S. v. Vega

• Decision Date: 11 December 1995
• Docket Number: 93-3841,94-1171 and 94-2780,Nos. 93-3074,s. 93-3074
• Citation: 72 F.3d 507
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Artemio VEGA, Glenn Early, Erwin Rios, and Adolfo Medina, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 507

72 F.3d 507

64 USLW 2479

UNITED STATES of America, Plaintiff-Appellee, v. Artemio VEGA, Glenn Early, Erwin Rios, and Adolfo Medina,

Defendants-Appellants.

Nos. 93-3074, 93-3841, 94-1171 and 94-2780.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 8, 1995.

Decided Dec. 11, 1995.

Barry Rand Elden, Chief of Appeals, Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, Daniel S. Goodman (argued), United States Department of Justice, Criminal Division, Appellate Section, Washington, DC, for Plaintiff-Appellee.

Allan A. Ackerman (argued), Chicago, IL, for Artemio Vega.

Kevin E. Milner (argued), Chicago, IL, for Glenn H. Early, Erwin Rios.

Ken DeValle (argued), Chicago, IL, for Adolfo Medina.

Before BAUER, COFFEY, and EVANS, Circuit Judges.

BAUER, Circuit Judge.

After a two-week trial, a jury convicted Artemio Vega, Glenn Early, Erwin Rios, and Adolfo Medina of conspiracy to distribute multi-kilogram quantities of cocaine in violation of 21 U.S.C. Sec. 846, and possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). All four defendants appealed, raising joint and individual challenges to their convictions. We affirm.

BACKGROUND

Vega, Early, Rios, and Medina conspired to distribute large quantities of cocaine. Unfortunately for them, another of their apparent co-conspirators--Jesse Rojo--was a co-operating witness for the Federal Bureau of Later, Vega called Rojo to tell him that the "spark plugs" were in the van in the hotel parking lot. The spark plug box turned out to contain not spark plugs, but $150,000 in cash. Early the next day, FBI agents, having maintained watch over the Sawyer garage, observed Vega driving away from the garage. The agents stopped Vega and asked what was in the boxes in his car. Vega claimed that the boxes contained automotive parts but gave permission for the agents to open the boxes. Not surprisingly, the boxes actually contained a white powdery substance. The agents immediately arrested Vega. Eventually, the agents discovered that Vega's car contained approximately 310 kilograms of cocaine. Subsequently, the FBI searched the Sawyer garage and seized another 190 kilograms of cocaine located in an automobile registered in Vega's name.

Investigation ("FBI"). In that capacity, Rojo arranged with a cocaine supplier, Noel Herrera, to transport 500 kilograms of cocaine from El Paso, Texas to Chicago. After Rojo picked up the cocaine, Herrera gave him instructions and a phone number for his contact "Charlie" in Chicago. Unbeknownst to Herrera, Rojo already had turned the cocaine over to the FBI. On March 5, 1992, Rojo and an FBI agent rendezvoused in Chicago and called Charlie. Charlie came to Rojo's hotel to pick up the cocaine. Rojo subsequently identified Charlie as defendant Vega. Vega told Rojo that he would return with the money. FBI agents then observed an Hispanic male drive the van containing the cocaine away from the hotel. Two men followed in another car. The van eventually pulled into an alley, and the van driver and another Hispanic male unloaded the boxes of cocaine into a garage on Sawyer Street. As the van drove away, a second car pulled behind and followed it back to Rojo's hotel. After a few minutes, this other car picked up the van driver and returned to the Sawyer Street garage. The FBI maintained surveillance of the three vehicles at all times.

Rojo then returned to El Paso to give Herrera his payment for the cocaine. The two men discussed shipping a second load to Chicago. A few days later, they met and Herrera informed Rojo that law enforcement officials had seized the first load and that Herrera needed to ship another 500 kilogram load to the same people in Chicago. Once again, Rojo was provided a van containing approximately 500 kilograms of cocaine. When he arrived in Chicago on March 15, 1992, accompanied as always by the FBI, Rojo called his contact using pre-arranged passwords. On March 16, 1992, three individuals in a brown car came to Rojo's hotel room and picked up the keys to the van. The FBI followed the van and the brown car to a business park in Addison, Illinois. The van entered a large garage on Kay Street. The brown car remained outside. A man later identified as defendant Rios approached in a champagne colored car. Rios drove toward the front entrance of the Kay Street garage. He walked to the front door, checked the mailbox, opened the door with a key, and went inside. A minute after Rios entered the garage, a motion detector planted in the cocaine was activated. A few minutes later, Rios drove away. The motion detector no longer emitted a signal after Rios left the Kay Street garage. A few minutes later, Rios re-entered the garage. Five minutes later, the motion detector was activated, indicating that the cocaine was being moved.

The FBI agents next observed the van and the brown car drive out of the garage. After driving around for a while, and stopping to make several phone calls, the two vehicles returned to Rojo's hotel. There, two individuals gave Rojo $150,000. Neither had been at Rojo's hotel room earlier. The man carrying the money was defendant Medina. Medina and the other man left the van in the hotel parking lot and drove off in the brown car. Shortly thereafter, they were arrested.

That same evening, an FBI agent saw two people leave the Kay Street garage. They locked the door and entered the champagne colored car. Several minutes later, a black car pulled up to the garage. The driver, later identified as defendant Early, entered the pedestrian doorway to the Kay Street garage. Early opened the garage door, drove into the garage, and closed the door. Approximately ten minutes later, Early drove back out in the same black car.

Early drove to a nearby shopping center where an FBI agent who had followed him approached. The agent had turned on his emergency light and activated his siren. Early and the agent got out of their cars and the agent asked Early to produce his drivers' license. Another FBI agent and a Chicago Police Department ("CPD") Detective asked Early to accompany them into another car for questioning. In the course of their conversation, Early told the agents and officer that the black car belonged to a customer of his auto shop but that he could not remember the customer's name. He refused to consent to a search of the car. However, Early did consent to a search of the Kay Street garage, and after the agents parked Early's car in the shopping center parking lot, they drove back to the Kay Street garage. While Early and the agents sat in the CPD car, Early's cellular phone rang. Rios was calling him. Early told Rios that he had been arrested and Rios swore. When Rios asked Early what car he had been driving, the officer instructed Early to hang up the phone. Early did so. Early then withdrew consent to search the garage and they all returned to the shopping center.

Shortly thereafter, a narcotics sniffing dog and its handler arrived at the shopping center and examined Early's car. The handler indicated that the dog detected the scent of cocaine in the trunk of Early's car. At that point, the FBI agent advised Early that he was under arrest on drug charges. Later, after obtaining a warrant to search Early's car, the officers discovered boxes containing 60 kilograms of cocaine in the trunk.

Finally, the agents executed a search warrant at the Kay Street garage. Inside the garage and inside the trunks of cars in the garage, the agents found large quantities of drugs and nearly $1.5 million in cash. The agents found two duffle bags of cash in a car registered to Early. In a limousine registered to Rios, the agents found 123 kilograms of cocaine. The agents also discovered 347 kilograms of cocaine in U-Haul boxes, Ziploc bags, a triple beam scale, and a utility knife.

It turned out that the Kay Street garage was leased to IM Auto. Both Rios and Early ran IM Auto. Early signed the lease and Early periodically delivered rent to the landlord. IM Auto subscribed to six cellular telephones. Cellular telephone records for March 16, 1992 show that three phone calls were made from an IM Auto cellular phone number to Rojo's hotel. Another IM Auto cellular phone number received four telephone calls from Rojo's hotel.

On March 10, 1993, a grand jury returned a three-count superseding indictment charging Vega, Early, Rios, and Medina with conspiracy to distribute multi-kilogram quantities of cocaine in violation of 21 U.S.C. Sec. 846, and possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). ¹ Early filed a motion to suppress evidence seized from the car he had been driving on March 16. He also sought to suppress statements that he made to agents that same night. The district court denied the motion as to evidence seized, but partially granted the motion as to statements, suppressing Early's statements made after receiving the cellular telephone call from Rios. Nevertheless, the district court admitted some of these statements at trial for the limited purpose of impeaching Early's testimony. After a two-week trial, the jury found the defendants guilty on all counts. ²

ANALYSIS

Three of the four appellants raise various individual and joint challenges to their convictions. Vega does not raise any individual issues but does assert the joint arguments. We address the individual issues first.

1. Adolfo Medina

Medina initially argues that the government failed to prove by a preponderance At trial, a senior forensic chemist with the Drug Enforcement Agency ("DEA"), Sanford A. Angelos, testified in detail about his statistical method for weighing the cocaine. Angelos testified that he examined Exhibit 1, which consisted of 25 boxes containing 498 packages of cocaine. Angelos randomly selected 28 packages from the 25 boxes, opened each of the 28 packages, and weighed the cocaine. Each package was about the same...