United States v. Lopez
| Citation | 907 F.3d 537 |
| Decision Date | 24 October 2018 |
| Docket Number | No. 17-1391,17-1391 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jose Jaime LOPEZ, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Greggory R. Walters, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Peoria, IL, for Plaintiff-Appellee.
Lisa M. Lopez, Attorney, JOSEPH R. LOPEZ, LTD, Chicago, IL, for Defendant-Appellant.
Before Easterbrook, Rovner, and St. Eve, Circuit Judges.
A jury convicted Jose Jaime Lopez of several drug-related offenses and the district court sentenced him to life in prison. In this direct appeal, Lopez challenges the denial of his motion to suppress, the sufficiency of the evidence on his conviction for attempting to possess with the intent to distribute 50 grams or more of methamphetamine, and his sentence of life in prison. We affirm both Lopez’s conviction and sentence, though we again remind district courts and the government to ensure compliance with the requirements of 21 U.S.C. § 851.
Beginning in late September 2014, law enforcement agents intercepted communications over a cellular telephone pursuant to a Maryland state court order revealing that Heliodoro Moreno, through courier George Salinas, planned to transport to Lopez a large quantity of illegal drugs from Texas to Illinois. Lopez arranged for his friend Andrew Linares to pick up the illegal drugs from Salinas and bring them to him. Law enforcement intercepted the illegal drugs at an Illinois bus stop, arresting Salinas and Linares and seizing 10 ounces of methamphetamine from Salinas. By 2015, the government developed a source who engaged in three controlled purchases of illegal drugs from Lopez, who law enforcement later arrested and charged in this case with several drug crimes.
On February 4, 2016, a federal grand jury indicted Lopez on numerous drug-related offenses including, pertinent here, that on or about October 1 to October 3, 2014, Lopez knowingly attempted to possess 50 grams or more of methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii). Lopez entered a plea of not guilty to all counts charged in the indictment.1
Prior to trial, on July 11, 2016, Lopez moved to suppress two cellular telephone calls—one between Moreno and a confidential source and another between Lopez and Moreno. The government intercepted the calls pursuant to a Maryland state court order authorizing law enforcement to intercept communications from a cellular telephone that Moreno was using in Texas, based on information that he was supplying illegal drugs to traffickers in Baltimore. In moving to suppress, Lopez argued that the order violated 18 U.S.C. § 2518(4)(b) by failing to specify "the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted," and further that law enforcement intercepted communications falling outside of the state’s territorial jurisdiction.
The district court denied Lopez’s motion, concluding that the court order complied with § 2518(4)(b) because it "identified the nature and location of the intercepted cellular telephone" and "specified the place where authority to intercept was granted." The court also found that law enforcement’s listening post was located in Maryland and law enforcement heard all the intercepted conversations in Maryland.2
On October 24, 2016, about a week before trial, the government filed an information pursuant to 21 U.S.C. § 851 notifying Lopez that it intended to rely on two prior drug convictions to enhance his sentence to life in prison under 21 U.S.C. § 841(b)(1)(A)(viii). One of the convictions stemmed from a 1999 Texas state felony marijuana possession charge to which Lopez had entered a plea of guilty and received a deferred adjudication that he successfully completed.
The case proceeded to trial on November 1, 2016. During trial, the jury heard from 17 witnesses, including Salinas, who testified about his transportation of methamphetamine via bus from Texas to Illinois and his communications with Lopez and Moreno; Linares, who testified about the instructions he received from, and the communications with, Lopez relating to picking up Salinas with the drugs from the bus stop in Illinois and bringing him to Lopez; Special Agent Joe Green, who testified about the events surrounding the receipt of information about Salinas’ transportation of drugs from Texas to Illinois and the arrest of Salinas and Linares; and other law enforcement officers. The government additionally presented many exhibits, including intercepted phone calls, extracted data from Salinas’ and Linares’ cell phones; the methamphetamine that Salinas transported from Texas to Illinois; and various items seized from Lopez’s Illinois home pursuant to a federal search warrant, including, among other things, address books with contact information for Salinas and Linares, five digital scales, ingredients that can be used as cutting agents for cocaine and methamphetamine, and two heat sealers that can be used to package illegal drugs.
On September 27, 2014, pursuant to the Maryland state court order, agents of the Drug Enforcement Agency ("DEA") intercepted a telephone call between Moreno and an individual using telephone number (217) xxx-8124 (the "217 Number"), that the government and several witnesses identified as Lopez. On the call, Moreno asked Lopez if he could "promote" "whiskey" where he lived, and Lopez answered "a lot is moved around here." Moreno and Lopez discussed a transaction involving "onions" and "whiskey" at $1,000 per "onion." Law enforcement agents testified that the discussion was about a drug transaction involving ounces ("onions") of a controlled substance ("whiskey") at $1,000 per ounce.
On the call, Moreno confirmed that Lopez knew Salinas—the eventual drug courier—and told Lopez that Salinas would contact him. Salinas had known Lopez for more than six years and had twice traveled to Illinois to bring Lopez "a little bit of weed." On September 28, 2014, Salinas and Lopez spoke about Salinas "bringing a package up" from Texas to Illinois.
Over the next three days, Moreno, Salinas, and Lopez made plans for Salinas to travel by bus from Houston to Illinois to deliver "ten little onions" to Lopez. Salinas would remain in Illinois until he received $4,000 in partial payment from Lopez, which Lopez thought would take him a few days to obtain. Lopez would then "work it, get rid of it" and settle the remaining balance with Moreno. As part of the plan, Lopez asked his friend Linares to pick up Salinas at the bus stop and Linares agreed to do so.
On the morning of October 2, 2014, Salinas arrived at a Houston bus station where one of Moreno’s workers took him to pick up a cellophane-wrapped package that Salinas then hid in his crotch area before boarding the bus bound for Rantoul, Illinois, a town near Lopez’s hometown of Hoopeston, Illinois. Salinas periodically sent text messages and spoke to Lopez during the nearly 24-hour bus trip that followed, updating Lopez on the progress of his trip.
On October 3, 2014, Linares was waiting at the Rantoul bus stop for Salinas’ arrival. Linares, who knew Salinas only by the nickname "old man," had met him through Lopez on Salinas’ past trips to Illinois. Earlier that morning, Lopez reminded Linares to pick up Salinas and informed Linares of the status of the Salinas’ bus, confirmed the pick-up location ("the usual Walmart"), and directed him where to take Salinas ("to town," meaning Lopez’s home).
When Linares arrived at the bus stop on October 3, 2014, he sent a text message to Lopez stating, "I’m here looks all clear," to which Lopez responded, "Cool .... see you in a bit." Salinas informed Lopez via text message when the bus arrived. Lopez responded that Linares is at the bus stop and instructed Salinas not to say anything.
Law enforcement agents were also at the bus stop. On October 2, 2014, the day prior, Baltimore DEA agents had informed their Illinois counterparts about intercepted phone calls revealing that illegal drugs were being transported from Texas to Illinois. By that evening, after obtaining a federal search warrant for prospective cell phone location data, the Illinois DEA agents used cellular location data and physical surveillance to identify the bus on which Salinas was traveling and then followed the bus to Rantoul.
The law enforcement agents arrested Salinas and Linares after Salinas exited the bus and entered Linares’ car. Salinas gave them the package, which a forensic chemist later determined contained 276.4 grams of a methamphetamine mixture with a purity level of 99.5%. While in custody, Salinas and Linares consented to searches of their cell phones, which yielded text messages to and from Lopez about the planned drug transaction and call records showing multiple attempted calls from Lopez after their arrest. Linares’ phone had contact information for "Jose L" at the 217 Number, whom he would later testify was Lopez. Salinas’ phone likewise had contact information for "Jose Lopez" at the 217 Number.
Law enforcement waited to arrest Lopez. By fall 2015, agents had completed three controlled buys of illegal drugs, including methamphetamine, from Lopez. Then, in early January 2016, law enforcement executed a search warrant on Lopez’s home, seizing, among other things, address books with contact information for Salinas and Linares, five digital scales, ingredients that can be cutting agents for cocaine and methamphetamine, and two vacuum heat sealers and related packaging materials that can be used to package illegal drugs.
Following the three-day trial, the jury found Lopez guilty on all counts. It also found on a special verdict form that the offense involved 50 grams or more of methamphetamine.
The district court subsequently held a sentencing hearing at which Lopez’s sole objection to the Presentence Investigation Report ("PSR") was...
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