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United States v. Diaz

decided: December 29, 1988.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
REYNALDO DIAZ, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 CR 688-3--Charles R. Norgle, Judge.

Cudahy, Ripple, and Kanne, Circuit Judges.

Author: Ripple

RIPPLE, Circuit Judge.

This is a direct appeal from a federal criminal conviction. After a jury trial, the appellant, Reynaldo Diaz, was convicted of conspiracy to distribute cocaine, possession and distribution of cocaine, and use of a firearm in relation to the commission of a drug trafficking crime. Mr. Diaz raises two issues. First, Mr. Diaz alleges that his conviction for use of a firearm was based improperly on his conviction on the conspiracy charge. Second, he alleges that the district court erred when it gave a conscious avoidance of knowledge instruction, commonly referred to as the "ostrich instruction." For the following reasons, we affirm the judgment of the district court.

I

BACKGROUND

On October 8, 1987, a six-count indictment was filed, charging six defendants with various drug-related offenses. Four of the defendants pleaded guilty. Jose Pineiro and the appellant, Reynaldo Diaz, were tried together. The jury acquitted Pineiro. Mr. Diaz was convicted of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846, possession and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), and use of a firearm in relation to the commission of "drug trafficking crime[s]" in violation of 18 U.S.C. § 924(c)(1). Mr. Diaz was sentenced to five years on each of the three counts. The sentences on the possession and distribution count and the firearm count were to run consecutively with each other and concurrently with the sentence on the conspiracy count. In addition, the district court sentenced Mr. Diaz to a four-year period of supervised release on the possession and distribution count.

II

FACTS

The indictment in this case charged Gerardo Perez, Luis Rodriguez, David Peirallo, Jose Pineiro, Carmen Diaz, and Reynaldo Diaz with conspiring to possess and distribute cocaine. It alleged that the conspiracy successfully distributed cocaine on four separate occasions: July 23, 1987; August 21, 1987; September 3, 1987; and September 9, 1987. The last transaction allegedly involved the sale of a kilogram of cocaine to a Drug Enforcement Administration (DEA) agent. Peirallo, Perez, Rodriguez, and Carmen Diaz pleaded guilty. At trial, the last three testified as coconspirators against Reynaldo Diaz and Jose Pineiro. Through these witnesses, the government maintained that Mr. Diaz was the supplier of the cocaine on three of the four occasions. Mr. Diaz's defense was that, although he knew some of the coconspirators, he had played no part in their illegal activities.

The testimony at trial revealed the following. A DEA agent purchased cocaine from Carmen Diaz (no relation to the appellant) and Perez on July 23, 1987. There was no testimony that Reynaldo Diaz was involved in this sale. Perez was just beginning to deal in drugs and contacted Rodriguez in an effort to find a supplier of cocaine. Rodriguez testified that he knew somebody who could "help [Perez] out" and arranged a meeting between himself, Perez, and Mr. Diaz. R.166 at 160. Rodriguez had known Mr. Diaz since 1977. After the meeting, Mr. Diaz agreed to supply drugs to Perez.

On August 21, 1987, and again on September 3, 1987, Perez sold two ounces of cocaine to DEA Agent Patricia Collins. Perez testified that he obtained these drugs from Mr. Diaz. Although Mr. Diaz was not present for either sale, Perez testified that the second sale occurred a half-block from Mr. Diaz's house so that Mr. Diaz could see the buyer. Rodriguez and Perez also testified that they dropped the money off at Mr. Diaz's house after the second sale. This assertion could not be verified by agents circulating in the neighborhood at the time.

On September 9, 1987, Perez and Rodriguez went to a designated location; they were to meet with Mr. Diaz to sell one kilogram of cocaine to Agent Collins. Upon their arrival, Mr. Diaz was not present. Telephone records introduced at trial corroborated that Perez and Rodriguez telephoned Mr. Diaz. Testimony of Perez and Rodriguez at trial revealed that Mr. Diaz thought the deal was going to take place closer to his home but agreed to join the men in ten to fifteen minutes. Approximately five minutes after Mr. Diaz arrived, Peirallo arrived. Peirallo had brought the kilogram of cocaine from Miami, Florida to Chicago, Illinois earlier that same day.

The parties waited an hour for Agent Collins. Peirallo became impatient and decided to leave the scene. He asked to be paged telephonically when Agent Collins arrived. Almost as soon as Peirallo left, Agent Collins arrived. Telephone records and testimony confirmed that Mr. Diaz telephoned Peirallo's pager. Perez joined Agent Collins in her car, counted the money, and then met with Mr. Diaz to confirm that Peirallo was on his way. Perez returned to Agent Collins' car to await Peirallo's arrival. Almost immediately, Mr. Diaz sent Rodriguez to Agent Collins' car to announce that Peirallo was arriving. Alter Peirallo had arrived and parked, the cars were lined up so that Peirallo's was first in line, Mr. Diaz's was the middle car and Agent Collins' car was the last car parked in line.

The officers engaged in surveillance testified that there was a great deal of movement and conversation among Mr. Diaz, Peirallo, and Rodriguez. When Peirallo arrived, Mr. Diaz and Rodriguez moved to Mr. Diaz's car; Mr. Diaz opened the hood of his car. The government and the appellant have conflicting theories about why the hood of the car was opened. Mr. Diaz claims the hood was opened because he was having car trouble. The government, in contrast, asserts that opening a car hood is a standard method by which drug dealers prevent their buyers from seeing the supplier of the drugs. Around the time the hood was raised, Perez left Agent Collins' car and went to Peirallo's car. Peirallo told Perez that he had a gun which he intended to use if anyone tried to steal the drugs. ...


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