United States v. Richards

• Decision Date: 14 June 2013
• Docket Number: No. 12–2790.,12–2790.
• Citation: 719 F.3d 746
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Theodore RICHARDS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

719 F.3d 746

UNITED STATES of America, Plaintiff–Appellee,

v.Theodore RICHARDS, Defendant–Appellant.

No. 12–2790.

United States Court of Appeals, Seventh Circuit.

Argued April 5, 2013.

Decided June 14, 2013.

Shoba Pillay (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Beau B. Brindley (argued), Attorney, Chicago, IL, for Defendant–Appellant.

Before EASTERBROOK, Chief Judge, and FLAUM and WOOD, Circuit Judges.

FLAUM, Circuit Judge.

As Theodore Richards tells it, he was the unwitting stooge of California drug dealers who flew him from California to Chicago on a mission to pick up and transport money but, unbeknownst to him, sent him home with ten kilograms of cocaine instead. Unfortunately for him, a joint federal-state task force had his pick-up site under surveillance in coordination with a controlled buy scheduled to occur there that day. Officers stopped Richards, too, and discovered the cocaine. A jury convicted him of possession with intent to distribute after he took the stand in his own defense and after the government introduced taped phone calls in which Richards talked about unrelated drug activity. Richards appealed, challenging the district court's denial of his motion to suppress, its denial of his motion to exclude the phone calls under Rule 404(b), and the government's use of the phone call evidence during closing arguments. Because the government improperly relied on the phone calls to argue propensity, we now vacate Richards's conviction and remand for a new trial.

I. Background

A. Factual Background

On November 21, 2010, federal and state police took up surveillance around the house located at 109 South Pinecrest in Bolingbrook, Illinois. In their sights was Juan Regalado, a suspected high-level drug dealer. Police had converged on the Pinecrest house that day because an undercover police officer was scheduled to purchase a large amount of cocaine there.

The operation required some advance work. First, the undercover officer met with Regalado at his ranch in Frankfort, Illinois. The day of the transaction, November 21, the officer rendezvoused with a lead car at an offsite location and then followed that lead car to the Pinecrest house. Upon arrival, the lead car left, and the officer pulled his car into the driveway. He backed into the garage, where the plan called for Regalado's men to load cocaine into a trap compartment accessed through the trunk of the officer's car. Opening the trunk, however, prevented the officer from pulling his car completely into the garage; this protrusion in turn prevented the garage door from closing. Regalado's men loaded bags into the trunk, and the officer left. Officers later confirmed that the bags contained ten kilograms of cocaine. Officers continued surveillance of the Pinecrest house because the undercover officer suspected additional drugs remained on the property.¹

About twenty minutes later, a silver pick-up truck arrived. The driver exited the car, entered the home, and returned to the truck after a short conversation with an occupant of the house. Officer Kenneth Mok, one of the surveillance officers, followed the pick-up after it departed the Pinecrest property. The truck ultimately met another car in a mall parking lot, a gray Lexus. The truck drove slowly past the Lexus and, as far as Officer Mok could tell, neither driver communicated with the other. The pick-up led the Lexus back to the Pinecrest house and then left. The Lexus, meanwhile, backed into the garage. The garage door closed. When it reopened ten minutes later, the Lexus emerged and drove away from the property with Officer Mok following behind.

While tailing the Lexus, Officer Mok received confirmation that the substance loaded into the undercover officer's car had tested positive for cocaine. After an hour of surveillance during which the Lexus violated no traffic laws, Officer Mok stopped the car. The defendant, Theodore Richards, was driving the car, and Nickelle Rodgers sat in the passenger seat. Officers questioned the pair.

Richards presented a California driver's license and, when asked who owned the car, admitted several times that it was not his. He never named the owner, however, until Officer Mok asked if the name “Jason Cook”—which Officer Mok had obtained from the vehicle registration—sounded familiar. According to Richards, Cook was his cousin. Richards told Mok he had flown in from Bakersfield, California, and had picked up Rodgers from Indianapolis to go on a date. The two were on their way to get something to eat, Richards explained. For her part, Rodgers told the police that she and Richards had been playing video games at another house and were on their way to grab a bite to eat. Neither mentioned their stop at the Pinecrest house.

Without consent, police searched the car and found a backpack in the trunk. It contained about ten kilograms of cocaine. Both Richards and Rodgers denied ownership of the bag and both were arrested. None of the officers involved in the operation had—before the gray Lexus arrived at the Pinecrest property—any information connecting either Richards or Rodgers with Regalado nor did the officers have any specific information (aside from the undercover officer's suggestion that more drugs may have been at the Pinecrest house) suggesting another drug deal would occur that day.

B. Procedural History

The government charged Richards with one count of possession of more than five kilograms of cocaine with intent to distribute. Richards moved to suppress the cocaine, arguing that the government lacked probable cause to stop and search the gray Lexus. The district court disagreed, concluding that Richards “tr [ied] to separate the strands of the information on which the officers acted as though they somehow ought to be looked at separately rather than together.” And viewing all the information together—the undercover officer's drug buy, the similarities between the undercover officer's approach and Richards's approach in the gray Lexus, and the undercover officer's suggestion that the Pinecrest property may have housed more drugs—the district court found probable cause. It denied the motion, and the case proceeded to trial.

At trial, Richards's primary defense rested on the assertion that he thought the backpack contained money, not drugs. He took the stand in furtherance of that defense. According to Richards's testimony, he had borrowed $50,000 from some Latinos that he knew collectively only as the Pelon brothers. He needed the money to start a trucking company with his cousin, but the company faltered when his cousin—the driver—became ill. Unable to repayhis loan, the Pelons enlisted Richards's assistance transporting packages, telling him that his help would repay the debt. According to Richards, he transported several packages for the Pelons, all of which he opened (against orders from the Pelons) and all of which contained money. Usually, Richards would communicate with the Pelons and obtain his instructions by meeting them at a ranch. Each time he visited the ranch, he testified, about thirty people were present “doing work and doing things.” Moreover, Richards explained that at the ranch, “[e]verybody called each other Pelon. That was the term that they used amongst each other.”

Richards also told the jury why he thought the Pelons wanted his trips transporting money to remain secret:

Well, I knew [the Pelons] were over here illegally. And they ran a lot of different businesses and stuff. And I also knew about strip clubs and prostitution. And I was being told about things about people sneaking over through the border, or whatever. That is what they said. There was also like—people that were also out at the ranch, they were also involved in drugs. But they never told me so I don't know.

Finally, Richards explained how the trip that led to his arrest came about. He received instructions from “Pelon” and was told he would travel to Chicago to transport money. As instructed, he waited until a gray truck drove by and then proceeded to the Pinecrest property where individuals loaded a dark backpack into his trunk. According to Richards, he was “shocked, confused” when officers removed the cocaine from his trunk because “[i]t wasn't supposed to be in [his] car.” Richards also testified that he had never been told he would pick up drugs in any of his “conversations with the Pelon brothers or with their associates.”

In cross-examining the defendant, the government asked Richards if he had ever talked on the phone with a man named Juan Beltran, which the defendant denied. The government also accused Richards of conversing with Beltran or another person regarding the need to obtain drugs. Richards admitted that he used marijuana but specifically denied discussing cocaine with anyone. On re-direct, Richards told the jury that he would talk with his brothers Lou and Chuckie about marijuana. Lou, he explained, was at the Pelon brothers' ranch “all the time.” And while Lou was at the ranch, Richards continued, he went by the name “Pelon.” Lou, however, was not involved in Richards's trip to Chicago that ultimately culminated in Richards's arrest.

Given this testimony, the government offered a brief rebuttal case involving taped phone conversations between Richards and a Bakersfield man named Juan Beltran. According to Drug Enforcement Administration Agent Shawn Riley, who monitored the wiretap on Beltran's phone during an unrelated investigation, Beltran also went by the alias “Pelon.” The conversations all occurred in the days leading up to Richards's arrest. In them, Beltran and Richards discussed drug quantity and drug quality. Although Beltran and Richards never specifically mentioned any drugs by name, Riley testified that, based on his prior experience investigating drug transactions and listening to wiretaps, the language Beltran and Richards used indicated that the two were...