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United States v. Calvo

decided: December 19, 1988.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JESUS ANTONIO CALVO, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 CR 538 -- Ann C. Williams, Judge.

Bauer, Chief Judge, Wood, and Ripple, Circuit Judges.

Author: Bauer

BAUER, Chief Judge.

Jesus Antonio Calvo appeals from his convictions for possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), and conspiracy to distribute cocaine, 21 U.S.C. §§ 841(a)(1) and 846. He contends that the district court committed a number of errors warranting reversal of his convictions. We disagree with each contention, however, and affirm.

I.

Acting on an informant's tip, law enforcement officers established surveillance of a building at 1412 West Irving Park Road in Chicago on July 20, 1987. At about 4:00 p.m. that afternoon, Calvo pulled up in front of the building in a white Cadillac. Guillermo Daza, Jose Garcia, and Luz Guevera also were in the car. Calvo entered the building carrying a brown paper bag. While inside, he telephoned a mobile phone connected to the Cadillac's cigarette lighter and requested Daza to join him. Daza, carrying a large envelope and the mobile telephone, then entered the building.

As Daza entered the building, Garcia and Guevera circled the area in the Cadillac. A short time later, they picked up Daza and Calvo, and proceeded to drive in a "circuitous" manner around the area. Inside the Cadillac, Calvo had a pager, which he used seven or eight times while in the car. He also talked on the mobile telephone a number of times, using code words to refer to drugs. At one point, Calvo got out of the Cadillac and boarded a city bus, instructing Daza to drive around until Calvo called him on the mobile telephone. Daza then drove the Cadillac to a tavern, which he and Guevera entered, taking the mobile telephone with them. They left a short time later and, with Guevera, drove around some more, in the process stopping to make more telephone calls. After a while, they picked up Calvo in the same place where he earlier had boarded the city bus.

Calvo proceeded to drive the Cadillac to the vicinity of Armitage and Kenneth Streets in Chicago, where he got out of the car and spoke with two men. Calvo then drove the Cadillac a short distance and parked near a brown Ford. Calvo gave Garcia the keys to the Ford and told Garcia to follow the Cadillac, which Garcia did. Calvo, driving the Cadillac, soon made a right-hand turn; when Garcia followed in the Ford, he ran a red light. At that point, law enforcement officers stopped both the Ford and the Cadillac.

When the officers questioned Calvo, Daza, and Guevera, they claimed never to have seen the brown Ford or Garcia, its driver. Garcia, in turn, denied knowing anything about the Cadillac or its occupants. Inside the Ford, the officers found ten packages of cocaine concealed behind the car's side panels. In all, the packages contained ten kilograms of 97 percent pure cocaine worth millions of dollars on the street. Inside the Cadillac, the officers found the mobile telephone, a test tube, and a test tube holder, among other things. Calvo had a beeper on his belt when he was arrested and was carrying a California driver's license and Florida vehicle registration card, each bearing his name. Guevera had two screw drivers in her purse.

On August 26, 1987, Calvo, Daza, Garcia, and Guevera together were charged in an information with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and with conspiracy to commit that offense in violation of 21 U.S.C. § 846. After Daza, Garcia, and Guevera pled guilty on September 9, 1987, Calvo was charged with the same offenses in a superseding indictment filed on November 25, 1987. Following a jury trial, Calvo was found guilty of both offenses. The district court sentenced him to 16 years in prison, a $25,000 fine, 15 years supervised release, and five years probation.

II.

A.

Calvo's first contention is that the district court violated his Sixth Amendment right to confront and cross-examine witnesses when it permitted the government to read into evidence a statement made by Daza at the time he pled guilty. At his guilty plea, Daza, who did not testify at Calvo's trial, told the district court his version of what occurred on July 20, 1987, the day he and the others were arrested. Later during the same proceeding, the district court asked Guevera for her version of that day's events. In response to the court's first question "What did you do that day, July 20, 1987?," Guevera responded, "the same thing that Mr. Daza says."

Guevera did testify at Calvo's trial, and defense counsel during his cross-examination began to question her about statements she made during her guilty plea. At a sidebar requested by the ...


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