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United States v. Grizales

decided: September 21, 1988.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JANETH GRIZALES, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 CR 288-4--Harry D. Leinenweber, Judge.

Easterbrook and Manion, Circuit Judges, and Eschbach, Senior Circuit Judge.

Author: Eschbach

ESCHBACH, Senior Circuit Judge.

Janeth Grizales appeals from her conviction for possession of cocaine with intent to distribute, and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1).

I

Grizales was charged in three counts of a five-count indictment, along with co-defendants Alberto Rojas (also known as Alberto Suarez) and Jose Rojas (also known as Jose Suarez). Count One of the indictment charged appellant and her co-defendants with conspiracy to possess cocaine with intent to distribute and conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. Count Four charged the three defendants with possession with intent to distribute, and with distribution of 126 grams of cocaine on April 13, 1987, in violation of 21 U.S.C. § 841(a)(1). Count Five charged Alberto and Jose Rojas and Janeth Grizales with possession with intent to distribute, and distribution of 1934 grams of cocaine on April 14, 1987, in violation of 21 U.S.C. § 841(a)(1). Following a jury trial, Grizales was acquitted on Count One and Count Four and convicted on Count Five.

Appellant was arrested on April 14, 1987, at the conclusion of a transaction for the sale of two kilograms of cocaine between Amporo Saavedra and Jose Rojas and Drug Enforcement Agency ("DEA") agent Leo Arreguin, Jr. Prior to April 14, Arreguin had made two cocaine purchases from Saavedra. Grizales was involved in the second of those two earlier transactions on April 13, 1987, as well as the April 14, 1987 sale that led to her arrest. On both occasions Grizales drove either Alberto Rojas or Alberto and his brother Jose Rojas (the record is not clear whether both of the Rojas brothers were present on April 13) in her automobile to the parking lot of a Chicago-area Kentucky Fried Chicken store where they rendezvoused with Saavedra. Saavedra and Grizales parked their automobiles near one another's, whereupon Alberto exited appellant's vehicle and entered Saavedra's vehicle.

On April 13, Alberto carried a bag or package containing some five ounces of cocaine when he exited Grizales' car. Alter talking briefly with Saavedra, he handed her the package, got back out of her automobile, and reentered Grizales' vehicle. Saavedra then left the parking lot, met Arreguin and completed the transaction. On April 14, 1987 a similar sequence of events transpired. At the request of Alberto Rojas, Grizales picked up his brother and him at a street corner in her automobile. When Alberto got into Grizales' car, he was carrying a brown paper grocery bag. Alter eventually driving some two miles and arriving at the Kentucky Fried Chicken store in appellant's car, Alberto Rojas got out of the front seat and walked to Saavedra's automobile. Rojas sat down in the front seat of Saavedra's car. After speaking with Saavedra for a short time, he got out of her car and reached into the passenger-side window of Grizales' vehicle, pulling out a brown paper bag. Alberto handed the bag to his brother Jose, who had also emerged from appellant's vehicle, and instructed him to go with Saavedra. Jose and Saavedra left the parking lot and drove to meet DEA agent Arreguin.

After the delivery of the bag, which Saavedra told Arreguin contained two kilograms of cocaine, Saavedra and Jose Rojas were arrested by the DEA agents who witnessed the transaction. Shortly thereafter, Grizales and Alberto Rojas were arrested at the Kentucky Fried Chicken store parking lot where they were waiting for Jose to return. At the trial, DEA agent William Furay testified that at the time of her arrest, after being advised of her rights, appellant made a statement to Frank Tucci, one of the arresting DEA agents, wherein she revealed, inter alia, that when she picked up Alberto and Jose Rojas on the evening of April 14, she knew the brown paper bag Alberto was carrying contained cocaine. Grizales made a second statement to agents at the DEA field headquarters after being advised of her rights a second time. Lake County, Indiana Sheriff's Department Sergeant Larry Wirtz, a member of the Chicago area DEA Task Force, testified that in the course of making this second statement, appellant repeated the admission that when she picked up Alberto and Jose earlier that evening, she knew the brown paper bag Alberto was carrying contained cocaine.

Prior to trial, Grizales entered a motion to suppress any evidence pertaining to either of her post-arrest statements. That motion was denied by the district court. At trial, Grizales denied having made either statement on the evening of April 14, 1987.

II

Grizales alleges that there is not sufficient evidence in the record to support her § 841(a)(1) conviction. She also asserts that her conviction should be reversed because she was denied effective assistance of counsel at trial. Finally, appellant asserts that the district court erred in imposing sentence on her. Each of these contentions will be addressed in turn.

A. The Sufficiency of the Evidence Claim--The Knowledge Element of the § 841(a)(1) Offense

Appellant asserts that there was not sufficient evidence in the trial record to establish her guilt on the Count Five § 841(a)(1) charge. The key to that assertion is appellant's contention that the government failed to adequately prove that she had knowledge that the material in the brown paper ...


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