United States v. Smith

• Decision Date: 20 April 2012
• Docket Number: Nos. 10–3630,10–3652.,s. 10–3630
• Citation: 674 F.3d 722
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ronald L. SMITH and Kevin Baker, Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

674 F.3d 722

UNITED STATES of America, Plaintiff–Appellee,

v.Ronald L. SMITH and Kevin Baker, Defendants–Appellants.

Nos. 10–3630

10–3652.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 16, 2011.Decided March 21, 2012.Rehearing Denied April 20, 2012.

Renai Scherri Rodney (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Barry Levenstam, Attorney, Jenner & Block LLP, Chicago, IL, John J. Molenda, Ph.D. (argued), Attorney, Mayer Brown LLP, New York, NY, for Defendant–Appellant.

Richard H. McLeese (argued), Attorney, Chicago, IL, for Defendant–Appellant.

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

TINDER, Circuit Judge.

Ronald L. Smith and Kevin Baker were convicted of conspiracy to possess with intent to distribute and to distribute, and attempted possession of five kilograms of cocaine. Baker was also convicted of using a telephone in commission of the conspiracy. The defendants appeal the district court's denial of their motion for a new trial which was based on the government's surprise disclosure of the identity of its confidential informant. Smith also appeals his sentence, arguing that the court based a three-level increase under U.S.S.G. § 3B1.1(b) only on unreliable testimony. Finding no error requiring remand, we affirm.

I. Background

Smith and Baker were charged with drug-related crimes. Count One of the indictment alleged that beginning no later than in or about 2006 and continuing to at least December 6, 2008, they conspired to possess with intent to distribute and to distribute five kilograms or more of cocaine. 21 U.S.C. §§ 841(a)(1) & 846. Count Two alleged that on or about December 5, 2008, they attempted to possess with intent to distribute five kilograms or more of cocaine. 21 U.S.C. §§ 841(a)(1) & 846; 18 U.S.C. § 2. Count Three charged that on or about December 5, 2008, Baker used a telephone in commission of the conspiracy. 21 U.S.C. § 843(b).

Before trial, Smith moved for disclosure of the identity of all confidential informers, arguing that their identities were relevant and helpful to the adequate preparation of a defense. The government opposed the motion, invoking the confidential informant privilege. The government stated that if any of the confidential informants were to testify at trial, their identities would be disclosed. The district court denied the motion, concluding that Smith had not shown a need for disclosure sufficient to outweigh the public's interest in preserving the informants' anonymity and encouraging citizens to report crimes.

At the jury trial in August 2010, the government alleged that Smith managed or supervised an operation in which various couriers, including Baker, transported drugs and money between Chicago, Illinois, and Columbus, Ohio. The government's evidence included the testimony of two participants in a drug organization run by twins Margarito and Pedro Flores, and cooperating witnesses Antonio Aguilera and Daniel Torres. The government also played recorded conversations allegedly between Smith and Baker and their supplier, a confidential source (CS), regarding the December 5, 2008, attempted drug transaction. The audiotapes of the recorded conversations had been made available to the defense in March 2009 and draft transcripts were provided around July 2010. Neither the recordings nor transcripts identified the CS by name. The government did not identify the CS in its opening statement, but referred to him as Smith's and Baker's “supplier.” Nor did the government hint in its opening statement that it would disclose the CS's identity to the jury.

The government's first witness was Aguilera. He claimed that he picked up “thousands” of kilos of cocaine for the Flores brothers and delivered the cocaine, in 5–to–50–kilogram amounts, to their customers. He stated that each customer was directly tied to a specific area, that is, there was a specific area where he would deliver to each customer. And he explained his general practices and methods of delivery.

Aguilera testified that he first met Smith in 2006 when Aguilera delivered cocaine to Smith at the direction of the Flores brothers. On that occasion, Aguilera and Cesar Perez, who also worked for the Flores brothers, went to meet a customer and deliver cocaine. Perez introduced Smith to Aguilera as “Pit Bull” or “Bulldog.” Smith gave Aguilera the keys to his vehicle and told him where it was located. Aguilera and Perez got the vehicle, a pewter GMC Tahoe with Ohio plates, from a parking garage and drove it to a stash house. At the stash house, Aguilera and Perez filled a secret, hidden compartment in the vehicle with as much cocaine as they could fit—15 kilos. They took the vehicle back to the parking garage, returned the keys to Smith, and told him where they had parked the vehicle.

Aguilera testified that about one week later, he met Smith again in the same area as the first meeting, near a Harley–Davidson store in downtown Chicago. The purpose was the same—to deliver narcotics. According to Aguilera, the Flores brothers instructed him to go to the area and meet the customer. Aguilera and Perez met Smith, got the keys to his vehicle, which was the same pewter GMC Tahoe or GMC Yukon ¹ with Ohio plates, and got the vehicle from the same parking garage as on the previous occasion. Aguilera and Perez drove the SUV to the same stash house, opened the hidden compartment, removed the money inside, and loaded it with 15 kilos of cocaine. They put the money in a duffle bag and left it inside the stash house. Then they returned the SUV to the area near the Harley–Davidson store and parked it. Aguilera testified that when he returned the keys to Smith, Smith said “he didn't want to come down to pick it up anymore,” which meant “he didn't want to drive to Chicago” anymore and “he might be sending a nurse down to pick up the stuff.” After that second meeting, Aguilera did not see Smith again until the trial.

A few weeks later, Aguilera, again acting on instructions from the Flores brothers, returned to the same area near the Harley–Davidson store “to drop off and pick up.” Aguilera stated that he met with a female who gave him the keys to the same pewter GMC Yukon with Ohio plates and told him where it was located. As before, Aguilera drove the vehicle to the stash house, removed the money from inside the hidden compartment, loaded it with cocaine, and returned the SUV to the parking garage. Aguilera did not know the woman's name.

Sometime thereafter, perhaps two weeks or a month later, Aguilera met the same woman again in the same area near the Harley–Davidson store. This time she was accompanied by Baker. Margarito Flores had sent Aguilera to meet “[t]he guys from Ohio,” pick up a vehicle, and unload it and load it. Baker gave Aguilera the keys to the same pewter GMC Yukon with Ohio plates. As before, Aguilera drove the SUV to the stash house, unloaded the money from the hidden compartment, and loaded it with cocaine. He then returned the SUV and keys to Baker.

The next time Aguilera met Baker, Baker was driving a blue Nissan Xterra. Aguilera picked up Baker in front of his hotel and drove him to the parking garage downtown, where Aguilera loaded the Xterra with kilograms of cocaine. About one or two months earlier, the same woman accompanying Baker when Aguilera first met him had turned the Nissan Xterra over to Aguilera so he could install a hidden compartment; he then returned the vehicle to her. On two occasions in the summer of 2006, Aguilera delivered cocaine to a man who was driving either the pewter Yukon with Ohio plates or the Nissan Xterra with Ohio plates. Aguilera didn't know the man's name.

During its direct examination of Aguilera, the government sought to introduce into evidence photographs of the Flores brothers. The defense objected. The court addressed the objection outside the jury's presence. It was at that point that the government first disclosed that Pedro Flores was the CS in the recorded conversations.

The second day of trial, the government called Special Agent Matt McCarthy to testify and provide a foundation for the admission of the recorded conversations involving the CS. Agent McCarthy testified that on December 3, 2008, he was recording phone calls made by a cooperating individual. The prosecutor asked the agent for the name of the cooperating individual, and the agent stated that it was Pedro Flores. Neither defendant objected to this identification at this time. The agent also testified that he made several recordings of telephone conversations made by Pedro Flores over the course of two or three days beginning on December 3.

The defendants moved for a mistrial on the ground that the CS's identity had been disclosed to the jury but had not been disclosed to the defense before trial. They argued the disclosure prejudiced them in terms of preparation and defense strategy. The government responded first, by erroneously stating that the defense had not sought disclosure of the CS's identity; second, by stating that it did not intend to call Pedro Flores as a witness; third, by arguing that Pedro's identity was offered to establish that the witnesses—Aguilera, Special Agent McCarthy, and Torres—were all referring to the same person; and fourth, that Pedro's statements were not being offered for their truth. The court effectively denied the motion and admitted the recorded conversations into evidence.

The audiotapes were played for the jury and corresponding transcripts also were made available. Before the audiotape recordings were played, however, the court gave a limiting instruction that the CS's statements were not to be considered for their truth, but “to place in context and help [the jurors] understand the statements that allegedly were made by defendants on the recordings.” The recordings were of seven telephone calls Pedro Flores made to Smith and Baker between December...