U.S. v. Zapata

• Decision Date: 24 February 1989
• Docket Number: No. 88-1304,88-1304
• Citation: 871 F.2d 616
• Parties: 27 Fed. R. Evid. Serv. 976 UNITED STATES of America, Plaintiff-Appellee, v. Orlando ZAPATA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 616

871 F.2d 616

27 Fed. R. Evid. Serv. 976

UNITED STATES of America, Plaintiff-Appellee, v. Orlando ZAPATA, Defendant-Appellant.

No. 88-1304.

United States Court of Appeals Seventh Circuit.

Argued Dec. 8, 1988.

Decided Feb. 24, 1989.

Rene A. Sotorrio, Law Office of Rene A. Sotorrio, Coconut Grove, Fla., for defendant-appellant.

Mel S. Johnson, Asst. U.S. Atty., Patricia J. Gorence, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before BAUER, Chief Judge, FLAUM and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

This is a direct appeal of a criminal conviction. After a jury trial, the defendant-appellant, Orlando Zapata, was found guilty of conspiracy to distribute cocaine, possession of cocaine with intent to distribute, and travel in interstate commerce to facilitate the illicit activity. See 21 U.S.C. Secs. 841(a)(1), 846; 18 U.S.C. Sec. 1952(a)(3). The district court sentenced the defendant to serve a total term of imprisonment of twenty years, followed by a special parole term of five years. It also imposed a $50,000 fine as to the drug distribution charge, and a total special assessment of $150.

Mr. Zapata now submits that the district court committed reversible error in (1) admitting evidence of a prior uncharged drug transaction and instructing the jury thereon, (2) refusing to strike the direct testimony of a government witness after the witness invoked his fifth amendment privilege against self-incrimination during cross-examination, and (3) admitting evidence of hotel registrations. We affirm the defendant's conviction.

I FACTS

In February 1987, Miguel Bilancieri, a Venezuelan student studying at the University of Wisconsin-Milwaukee, was arrested for the sale of eight ounces of cocaine. He reached an agreement with state and federal authorities under which all charges would be dropped in exchange for his complete cooperation in the investigations of other suspected drug traffickers and his promise to commit no further offenses. Gov't Ex. 1. Bilancieri did not keep his end of the bargain. On July 9, 1987, he was arrested by federal authorities for the sale of ten ounces of cocaine. A subsequent search of his apartment revealed nearly a half-kilogram of cocaine. After his arrest, finding himself facing four counts of drug trafficking, Bilancieri became more cooperative; he told federal agents in detail about a recently consummated transaction supplying him with two kilograms of cocaine. [Hereinafter referred to as the "June transaction."]. He named the defendant-appellant, Orlando Zapata, as his supplier.

Bilancieri told the agents (and later the jury) that, in early June, he had received a The couriers arrived on June 28th; Mr. Zapata introduced Bilancieri to them in the hotel lobby. Then, Bilancieri and the defendant drove to a nearby parking lot, the couriers parked beside them, and the couriers gave Bilancieri a two-kilogram box of cocaine. The next day, June 29th, Bilancieri drove Mr. Zapata to the airport. At that time, Bilancieri gave $19,000 to Mr. Zapata, and Mr. Zapata agreed to allow Bilancieri an extra week to raise the balance of the sum due. In parting, Mr. Zapata expressed a desire to conduct even more business with Bilancieri, stating that he supplied large quantities of cocaine to dealers in Miami and New York City, and that, if Bilancieri desired, he could supply greater quantities of cocaine to Milwaukee. Mr. Zapata also told Bilancieri that, if Bilancieri wanted significant price discounts, he should arrange his own transportation for the cocaine. Specifically, Mr. Zapata suggested that Bilancieri furnish a car with Wisconsin license plates, which Mr. Zapata would then have modified with secret compartments for the clandestine shipping of drugs. After making such a farewell, Mr. Zapata returned to Miami.

                phone call from a man named Milton, later identified as Mr. Zapata, seeking to arrange an eighteen- to twenty-thousand-dollar deal for "good quality product."    Bilancieri understood this term to mean cocaine.  Mr. Zapata gave Bilancieri several phone numbers in Miami and New York City at which he could be reached.  Further phone calls occurred throughout the month, and eventually Mr. Zapata agreed to go to Milwaukee to discuss the terms of the drug sale.  On June 27th, Mr. Zapata flew from Miami to Milwaukee and was picked up by Bilancieri at the airport.  That afternoon, the two men negotiated and agreed to the sale of two kilograms of cocaine at a price of $19,000 per kilogram, which Bilancieri considered to be quite a bargain.  Mr. Zapata also explained how the cocaine was to be delivered:  the cocaine would originate in Miami, come through Chicago, and then be driven to Milwaukee by two couriers.  That first night, Mr. Zapata stayed at Bilancieri's apartment, but he checked into the Milwaukee Hyatt Regency Hotel the following day. 1
                

Bilancieri now had two kilograms of cocaine, but also had a large problem--he had to get an additional $19,000 to complete his payment to Mr. Zapata. Several days following his return to Miami, Mr. Zapata called Bilancieri and communicated some concern about the remaining $19,000 that Bilancieri owed. Mr. Zapata recommended that Bilancieri fly down to Miami to address the matter, and Bilancieri complied. In Miami, Bilancieri met with the defendant; apparently, Bilancieri could not muster the funds required to cancel his debt, ² and he returned to Milwaukee that evening. In order to raise funds, Bilancieri began to sell the two kilograms of cocaine he had purchased from Mr. Zapata. On July 9th, federal agents arrested Bilancieri for selling ten ounces of cocaine.

After recounting the above facts to the agents, Bilancieri and federal and state authorities reached a new cooperation agreement. Bilancieri agreed to assist in the seizure of at least six kilograms of cocaine and the indictment of the supplying individual. Gov't Ex. 2. Bilancieri began cooperating, and made several calls to Mr. Zapata that were recorded by FBI agents. Speaking in Spanish and employing code words suggested by Mr. Zapata on his prior visit, ³ Bilancieri and the defendant reached an understanding whereby Mr. Zapata would return to Milwaukee to transact a sale of seven kilograms of cocaine at a total price Around noon the next day, Bilancieri was escorted by undercover FBI agents to the hotel, where he met Mr. Zapata and Palacio. Following a brief conversation, the men went to the hotel parking garage where the cocaine-laden vehicle was located. When they arrived at the car, Mr. Zapata told Palacio to open the hood. Then, while he remained outside and looked into the engine, Mr. Zapata instructed Palacio to "get it." Palacio went to the back seat of the vehicle, opened a concealed side panel and placed two yellow packets into a plastic bag Bilancieri had given him. At that moment, Mr. Zapata noticed a surveillance agent in the corner of the garage and barked out "federales." He then ordered Bilancieri and Palacio to get into the car with him. Bilancieri, however, refused to enter, telling Mr. Zapata that he had to report to his client about what was happening. Bilancieri returned to the hotel.

of $140,000. Bilancieri succeeded in convincing Mr. Zapata that he had a client who would pay in cash for the entire amount. Mr. Zapata flew to Chicago with his driver/assistant Juan Palacio (an original co-defendant who testified for the government). Palacio had helped Mr. Zapata amass seven kilograms of cocaine and arrange for its transportation by automobile couriers to Chicago. After arriving in Chicago, they picked up the car fitted-out with secret compartments in which were stashed seven kilograms of cocaine and together drove to Milwaukee. Once in Milwaukee, Mr. Zapata checked into Room 910 at the Hyatt Regency and there spent the night of July 22nd.

Mr. Zapata and Palacio also returned to the hotel soon afterwards, and subsequently were arrested in their room. A search of the vehicle at the hotel parking garage revealed, among other things, seven kilograms of cocaine secreted inside two concealed compartments located in the side panels.

II ANALYSIS

A. Other Acts Evidence

Mr. Zapata submits as his primary challenge on appeal that the district court erred in admitting evidence of Bilancieri's prior transaction with Mr. Zapata in June 1987. See Appellant's Br. at 11. In a related challenge, Mr. Zapata submits that the district court erred in instructing the jury on the consideration of the June transaction evidence. Our inquiry is governed by Federal Rule of Evidence 404(b). That Rule states 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.

Fed.R.Evid. 404(b).

1. Admission of Evidence

This court has frequently discussed the relevant standard under which the district courts may permit the admission of evidence of acts other than those charged. See, e.g., United States v. Leight, 818 F.2d 1297 (7th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 356, 98 L.Ed.2d 381 (1988); United States v. Beasley, 809 F.2d 1273 (7th Cir.1987); United States v. Shackleford, 738 F.2d 776 (7th Cir.1984). To determine if such evidence is admissible, the district court must engage in a four-pronged analysis and evaluate whether (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. See Shack...