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United States v. Diaz

decided: June 9, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
HERIBERTO DIAZ, YVETTE HUERTAS AND WILFREDO MOJICA, DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Northern District of Illinois. Nos. 87-CR-699-4, 87-CR-699-3, 87-CR-699-2, Charles R. Norgle, Judge.

Coffey, Manion, and Kanne, Circuit Judges.

Author: Coffey

COFFEY, Circuit Judge

Heriberto Diaz, Yvette Huertas and Wilfredo Mojica appeal their convictions on charges of conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. § 846, and of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). We affirm.

I

FACTS

Heriberto Diaz, Yvette Huertas and Wilfredo Mojica were subjects of a three count indictment charging each of them with one count of conspiracy to possess with intent to distribute and distribute cocaine, as well as another count of possession of cocaine with intent to distribute. These indictments stemmed from drug arrests that took place on September 11, 1987, in Chicago, Illinois.*fn1

The events began with an August 27, 1987, drug transaction between co-conspirator William Contreres and Drug Enforcement Administration (DEA) Agent Randy Clifton.*fn2 On that date, Agent Clifton, who was acting in an undercover capacity, was seated in a vehicle outside the Los Sombreros Lounge at 3934 West Division Street in Chicago, Illinois. Accompanying Agent Clifton in the automobile was a DEA confidential informant, Angel Ortega. While Clifton and Ortega were seated in the automobile, co-conspirator William Contreres and one Jorge Cerrano approached the driver's side window. Contreres advised Agent Clifton that the cocaine would arrive shortly. Clifton gave Contreres the number for the pager which he carried and instructed Contreres to contact him when the cocaine was delivered. Special Agent Clifton and Ortega departed the area. Approximately 20 minutes later, Contreres and Cerrano paged Agent Clifton, and Clifton and Ortega returned to the Los Sombreros Lounge.

Upon the arrival of Clifton and Ortega, Contreres and Cerrano again approached Clifton's automobile. Contreres told Clifton that the cocaine had arrived and instructed Clifton to drive one block west to the parking lot of an Amoco gas station where the narcotics transaction would be completed. After arriving at the parking lot, Contreres entered the back seat of Clifton's car, while Cerrano remained outside. Contreres reached inside his coat pocket and handed Clifton a plastic sandwich bag containing approximately one ounce of cocaine. Clifton gave Contreres $1,300 in United States currency. Prior to leaving Clifton's automobile, Contreres told Clifton the he could supply Clifton with larger quantities of cocaine. Clifton asked Contreres if he could supply "kilogram quantities," to which Contreres replied, "No problem."

The cocaine transaction that resulted in the appellants' arrests and prosecutions occurred less than two weeks later. On or about September 9, 1987, Confidential Informant Ortega received a telephone call from Contreres, in which Contreres told Ortega that he had a kilogram of cocaine ready for delivery to Agent Clifton. A purchase price between $21,000 and $23,000 was discussed.

Two days later, during the late morning hours of September 11, 1987, Ortega received another telephone call from Contreres. Contreres again stated that he was ready to deliver one kilogram of cocaine, and inquired concerning the delay in the transaction. Ortega gave Contreres a DEA telephone number, and Contreres agreed to call Ortega at that number later on the same day.

Subsequently, Contreres made two telephone calls to Ortega at the DEA office. In the first call, Contreres told Ortega that the kilo of cocaine was ready and that Ortega should meet him at 1:00 p.m. that afternoon at the corner of Pulaski and Armitage in Chicago, Illinois to execute the drug transaction. In the second phone call, Ortega told Contreres that they would arrive a little later than planned, but that they would be there.

Clifton and Ortega then drove to the designated location, followed by DEA agents who established surveillance in the vicinity. When Clifton and Ortega arrived at the corner of Pulaski and Armitage, they were met by Contreres and an unidentified male. Contreres approached the window of Clifton's vehicle and instructed Clifton to drive one block south on Pulaski where they would meet in a parking lot located across the street from a fire station.

Contreres and the unidentified male then got on a red motorcycle, and drove to the parking lot followed by Clifton and Ortega. Upon arriving at the parking lot, Contreres again approached Clifton's car. Contreres informed Clifton that Clifton had missed the cocaine delivery because he was late, that a telephone call would need to be made to arrange for redelivery of the cocaine, and estimated that it would take approximately one-half hour for the cocaine to arrive.

Confidential Informant Ortega then left the vehicle, while Agent Clifton remained inside. Ortega, Contreres and the unidentified male entered a house located at 1739 North Pulaski, which was directly across the street from the parking lot where Agent Clifton was parked. The house was later identified as the residence of defendant Wilfredo Mojica. Upon arriving at Mojica's residence, Contreres advised Mojica, who was in the bathroom, that the person with the money for the cocaine was now present. Contreres introduced Mojica to Ortega when Mojica left the bathroom. Mojica told Ortega that he would call the individual who could deliver the cocaine on that person's paging device, and proceeded to dial a telephone number.

The unidentified male who had accompanied Contreres on the red motorcycle left the residence and approached Clifton's car. He told Clifton to be patient, since the cocaine would arrive in about fifteen minutes. The male boarded the red motorcycle and proceeded north on Pulaski. Surveillance agents were unable to follow him. The unidentified male returned shortly thereafter, approached Agent Clifton's vehicle, handed Clifton a soda, and then left the area.

Subsequently, a red car arrived in front of Mojica's house. There is a conflict in testimony as to what transpired next. Agent Clifton, together with DEA Agent Oswaldo Amaro, who was conducting surveillance, testified that two individuals, later identified as defendants Heriberto Diaz and Yvette Huertas, exited the car and approached the residence.*fn3 In contrast, Huertas testified that she was not present on this occasion. Huertas' position was consistent with the testimony of Confidential Informant Ortega, who was in the house at the time, and who testified that he observed Mojica speaking only with Diaz. In that conversation Mojica informed Diaz of the presence of the person who had the money to purchase the cocaine and instructed Diaz to get the cocaine and return to the house. Diaz or both Diaz and Huertas (depending upon which version of the facts that is accepted) then left the residence. Upon leaving the area, Diaz pulled his vehicle into the parking lot where Special Agent Clifton was seated. Diaz then proceeded south on Pulaski, followed by surveillance agents who lost Diaz' vehicle in traffic.

A short time later, Diaz, this time undisputedly accompanied by Huertas, returned to Mojica's residence in his red car. Instead of parking his automobile in front of Mojica's house, Diaz turned the vehicle into an alley which ran between the dwelling and the fire station directly north of the residence and parked his car behind the house. Diaz and Huertas left the car and entered the garage. The overhead doors of the garage which faced the alley were open, enabling surveillance agents to observe that Huertas was carrying a black purse or bag. Huertas testified that Diaz had told her to carry the bag, that she had not seen the bag previously, that she was unaware of the bag's contents and had never before been to Mojica's residence.

Confidential Informant Ortega testified that Diaz and Huertas then entered Mojica's house through the rear door. Ortega further testified that Huertas was carrying the black bag as she entered the residence. In contrast, Huertas testified that she gave the bag to Diaz while both were on the back porch of Mojica's dwelling, never entered the house and remained on the back porch. After Diaz and Huertas arrived, Contreres called to Ortega from the kitchen, telling Ortega to come to that room. Ortega testified that when he arrived in the kitchen, Diaz, Huertas, Mojica and Contreres were all standing around the kitchen table. Ortega walked over to the kitchen table. At that time, a package was removed from the black bag which Huertas had been observed carrying into the residence. The package was cut open and Ortega stated he observed what he believed to be cocaine. Ortega told the group that the cocaine looked satisfactory, that they should take the cocaine out to the car where Clifton was seated, and that Clifton would give them the money for the cocaine at the car. At least one of the defendants informed Ortega that the money was to be brought into the house.*fn4 Ortega and Contreres then left the house through the front door. Ortega remained on the sidewalk while Contreres approached Agent Clifton's car, advised Clifton that the cocaine had arrived and requested that Clifton bring the money for the cocaine into the residence. Ortega then displayed a pre-arranged arrest signal which informed surveillance agents that the cocaine was present in the residence. Upon observing Ortega's arrest signal, Clifton turned on the flashers of the vehicle which was an alternate arrest signal. Contreres was then placed under arrest.

At this time, agents began to converge on the residence to seize evidence and make other arrests. DEA Agents Richard Joyce and Oswaldo Amaro, who had been conducting surveillance near the rear of the property, entered the garage, saw Huertas running from the back of the residence into the garage and arrested her. Agent Amaro then observed defendants Diaz and Mojica leaving the house through the rear door. Diaz was carrying the black bag and Diaz and Mojica were attempting to put something into the bag. Agent Amaro commanded Mojica and Diaz to stop, but the two turned, ran back into the residence and locked the door. Amaro went to the rear door of the residence and was unsuccessful in attempting to force the door open.

Other DEA agents then approached the front door of the residence which was open. As the agents arrived at the door, it was closed by an unidentified individual. Agent Leo Arreguin knocked on the door, stated that the agents were police officers and requested that the door be opened. Agent Arreguin could hear a great deal of noise inside the house. Arreguin then forcibly opened the door, entered the residence and observed Mojica and Diaz. Mojica was standing in the living room area and Diaz was running up a flight of stairs in possession of the black bag.

Agent Arreguin apprehended Mojica. Arreguin testified on direct examination that he ordered Mojica to lie on the floor of the living room and did not touch Mojica. On cross-examination it was brought out that Agent Arreguin had testified in an earlier proceeding in this case that he grabbed Mojica and placed him on the floor. Following Mojica's arrest, Arreguin, together with other agents, went to the upper floor of the house in pursuit of Diaz. Upon reaching the second floor, Agent Arreguin observed Diaz in a bedroom seated near the foot of the bed and arrested him. Another DEA agent, Michael Hillebrand, proceeded to a second bedroom also on the same floor. When Hillebrand entered the room he observed an open black bag resembling a binocular case lying on the floor of a walk-in closet. Hillebrand noted that inside the bag was another bag that, in turn, contained a white powder substance later determined to be 1,000.75 grams of 86 percent pure cocaine.

At trial, defense counsel devoted a great deal of attention to matters relating to the credibility and possible bias of Confidential Informant Angel Ortega. The government itself introduced into evidence Ortega's complete DEA informant payment records. It was established through this evidence and through the cross-examination of DEA Agent Clifton that Ortega had received over $138,000 in payments from the DEA between 1982 and 1987 and had received $3,000 in connection with this case. These payments were made in cash and, to the best of Clifton's knowledge, Ortega had paid no taxes on this money. Testimony was also elicited from Clifton concerning individual rewards in the amounts of $15,000 and $10,000 that the DEA had paid Ortega. Agent Clifton further stated that Ortega turned in receipts for expenses on certain occasions, but confessed that he had not seen any of them.

Prior to Ortega's cross-examination, the government was granted a motion in limine precluding the defendants from cross-examining Ortega concerning income tax matters. Ortega was extensively cross-examined in a number of other areas. He noted that he came to this country illegally in 1972, had not been prosecuted and had been considered legally present since 1982, when he began to work for the DEA. He testified that his work with the DEA was his sole financial support, that he received rewards only when drug deals went through and that his rewards bore some relationship to the quantity of drugs confiscated. Ortega further acknowledged that he had received approximately $139,000 in payments from the DEA.

At the conclusion of the joint trial, the jury found the three defendants guilty of each of the charges brought against them. Defendants Huertas and Diaz were both sentenced to the five-year minimum prison term permitted under applicable law. In both cases the district court stated that a lower sentence would have been imposed had this been permissible under the relevant statutes. Defendant Mojica was sentenced to a seven-year prison term.*fn5

Defendants Mojica and Diaz both challenge their convictions on the basis of limitations that the district court placed upon their cross-examination of government witnesses. Defendant Huertas asserts that the evidence was insufficient to support her convictions. She further claims that her convictions must be reversed because the district court erroneously rejected her pre-trial motions that had alleged improper joinder of defendants under Fed.R.Crim.P. 8(b) and sought severance under Fed.R.Crim.P. 14.

II

CROSS-EXAMINA ...


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