Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 CR 855-Harry D. Leinenweber, Judge.
Cummings, Posner, and Manion, Circuit Judges.
Defendants appeal from convictions for conspiracy to distribute cocaine, aiding and abetting in distribution of cocaine, and use of a telephone to facilitate the conspiracy. We affirm the convictions.
On November 18, 1986, Dario Espinosa-Alvarez, a prisoner at the Metropolitan Correction Center in Chicago, told government informant Frank White that a "married couple" would deliver cocaine to White. A week later, White received a call from Nancy Perez, who identified herself as the wife of Dario's friend. A few days after that, Nancy Perez called White to report that she and "Pedro" would come to Chicago on November 29, but they never arrived.
However, that same night White did receive a call from a man whose voice government agents later attributed to Armando Manso-Portes. Manso-Portes turned the phone over to a second man, later identified as Carlos Picon. It is undisputed that White pressed Picon to promptly advise White of developments. Minutes later, Nancy Perez called White to say that she and Pedro were about to register at the Westin Hotel.
The next day, White and DEA Agent Frank Tucci met Nancy and Pedro Perez at the Westin Hotel. The Perezes, White, and Tucci then drove to the parking lot of the Ohio House Motel where Nancy Perez recognized an Oldsmobile that had arrived from Florida. The Perezes went into the hotel and returned some minutes later with Manso-Portes. The Perezes, driving the Oldsmobile, followed Tucci and White to a commercial parking garage in Rosemont, Illinois.
While in the garage, Pedro began removing the rear bumper from the Oldsmobile. This consumed approximately an hour. During the removal, Tucci praised how the cocaine was well hidden. Nancy commented that previously the police stopped the car in Louisiana but did not find the hidden drugs. She added that there had been a second police stop in Louisiana during a drive in the opposite direction when the car was carrying money, but the police didn't find that either.
After removing the bumper, Pedro Perez removed four kilograms of cocaine hidden in a compartment behind it. Nancy and Pedro Perez were then arrested. Manso-Portes and Picon were later arrested at the Ohio House Motel.
DEA agents had watched the Oldsmobile and defendants Manso-Portes and Picon since the morning of November 30. In Manso-Portes's billfold agents found a paper listing Tucci's and Pedro's telephone numbers. Agents also took Picon's address book which contained the telephone numbers of Armando and Ignacio Manso-Portes (Armando's brother). Both defendants denied having met anyone in Chicago, and denied having entered the Oldsmobile. Although they claimed they travelled to Chicago from Miami by bus instead of in the Oldsmobile, neither Picon nor Manso-Portes could identify the bus company.
At trial, the government supplemented Tucci's testimony regarding Nancy Lopez's reference to the two Louisiana police stops. The government introduced the testimony of Louisiana state troopers who had twice in October 1986 stopped an Oldsmobile containing both Ignacio and Armando Manso-Portes. The stops had been for speeding and for tailgating respectively. Trooper Douglas Robertson, who stopped the car on October 2, 1986, identified Armando Manso-Portes and recognized a photo of the Oldsmobile. While Robertson searched the car, he noticed that Armando was visibly shaking and sweating despite 50-degree weather.
Sergeant Robert D. Fogelman and Trooper Richy LaSalle testified that on October 9, 1986, they searched the same vehicle in which both Armando and Ignacio Manso-Portes were riding. Armando again was fidgeting and shaking.
Before trial, Picon had argued that this "Louisiana stop" evidence should be admitted because it would show that he had not been there. He wanted his trial severed from that of Manso-Portes if the stop evidence were kept out. He later changed his trial strategy and objected to the evidence.
Over the objection of both defendants, the district court at the conclusion of the evidence instructed the jury:
You have heard evidence of acts of the defendant Armando Manso-Portes other than those charged in the indictment. You may consider this evidence only on the question of the knowledge and intent of both of the defendants. You have heard evidence of statements of the defendant Armando Manso-Portes to the Louisiana troopers. You may consider this evidence only on the question of the knowledge and intent of the defendant Armando Manso-Portes. This evidence is to be considered by you only for these limited purposes.
The trial court instructed the jury that it was defendant Armando Manso-Portes's theory of the case that he was not a member of a conspiracy to deliver cocaine, and not guilty of the charges alleged. The trial court further instructed that it was defendant Picon's theory with respect to conspiracy that Picon had not conspired to violate federal narcotics law, but was merely with Manso-Portes on vacation. The trial court likewise charged that it was Picon's theory of the case that he did not knowingly, intentionally, or willfully participate in aiding, abetting, counseling or commanding the sale ...