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United States v. De Soto

decided: September 6, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MARIA URREGO DE SOTO, GUSTAVO CHAVERRA CARDONA, AND RUTH URREGO CHAVERRA, DEFENDANTS-APPELLANTS



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 86-CR-740-1, 86-CR-740-4, 86-CR-740-9 -- Milton I. Shadur, Judge.

Cudahy, Posner, and Ripple, Circuit Judges.

Author: Ripple

RIPPLE, Circuit Judge

The defendants -- Gustavo Chaverra Cardona, Ruth Urrego Chaverra, and Maria Urrego de Soto -- appeal their convictions for various drug trafficking offenses; a jury found each defendant guilty of conspiring to distribute cocaine in violation of 21 U.S.C. § 846 and of several counts of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The defendants appeal on a multitude of grounds. We affirm.

I

FACTS

A tangled web of actions, spun by the three defendants and a number of their associates in a north Chicago neighborhood over the course of 1986, forms the basis of the case now before us. The three defendants are all related to each other: Gustavo Chaverra Cardona and Ruth Urrego Chaverra are husband and wife, and Maria Urrego de Soto is Ruth Urrego Chaverra's sister.*fn1 Other participants in the conspiracy were also closely tied to the defendants by bonds of family or friendship: Alvaro Chaverra (Alvaro) is Mr. Chaverra's brother and Ramon Sanchez (Sanchez) is a close associate of the family members. Also involved in the organization was Fanny Bertha Altamirano, who served in the Chaverra and de Soto homes as a housekeeper, and later became a principal government witness in the case against her former employers. The locations used by the conspiracy were proximate to each other. The conspiracy operated out of three primary households: (1) Alvaro's apartment at 5752 North Campbell Avenue, which served as a stash house; (2) Ms. de Soto's apartment at 5812 North Campbell Avenue, which served as a meeting place to carry out the transactions; and (3) Mr. and Mrs. Chaverra's former home at 5306 North California Avenue. (Just prior to Mr. Chaverra's arrest, the Chaverras moved to a new home at 5143 North Oakley Avenue.)

In August 1984, Mrs. Altamirano started working as a housekeeper for the Chaverras. Ms. de Soto often came to visit her sister and brother-in-law's home, and thus Mrs. Altamirano came to know Ms. de Soto as well. Alter becoming acquainted, Ms. de Soto occasionally hired Mrs. Altamirano to do household chores at her home. In early 1986, Mrs. Altamirano testified, she came to notice large amounts of cash in the Chaverra home. This money was stacked in a closet to which Mr. Chaverra would go often, and alone, during each day; she also noticed a safe in a closet of another room. By the month of May 1986, Mrs. Altamirano began to see even larger amounts of cash in the Chaverra home. For example, she saw Mrs. Chaverra and Ms. de Soto counting stacks of money and separating them by denomination. At Ms. de Soto's apartment, Mrs. Altamirano witnessed similar activity -- once, the money counting occurred immediately before the visit of a woman named Mona, who was a friend of Ms. de Soto's. Another time, while she was cleaning Ms. de Soto's dresser, Mrs. Altamirano found a box containing a white powdery substance. Mrs. Altamirano later observed Ms. de Soto sell the powder to an unidentified man for $900.

Mrs. Altamirano was not simply a detached observer of the goings-on in the Chaverra and de Soto homes. She herself sold cocaine, supplied by Mrs. Chaverra, to a confidential informer. Sometime in early May 1986, this confidential informer introduced undercover FBI Agent Gregorio Rodriguez to Mrs. Altamirano. After negotiations, she agreed to sell cocaine to Agent Rodriguez -- then known to her as Jorge Castro. On May 28, Agent Rodriguez met Mrs. Altamirano to purchase a sample of the cocaine that she said she could provide through her Colombian employers -- the Chaverras. He paid her $150, and she entered the Chaverra home; a short time later, Mrs. Altamirano returned with a small packet of cocaine. Mrs. Altamirano testified that Mrs. Chaverra provided her with the cocaine and instructed her to use the code word "movies" for any future cocaine purchases. On May 30, Agent Rodriguez arranged another purchase through Mrs. Altamirano. First, she called Mrs. Chaverra and told her she wanted a "movie"; then, Agent Rodriguez gave her $1,200 to buy an ounce of cocaine. At 3:00 p.m., Mrs. Altamirano went into the Chaverra house and soon returned to Agent Rodriguez' car with a plastic bag containing 28 grams of 93 percent pure cocaine. Mrs. Altamirano testified that Mrs. Chaverra provided her with the cocaine and that Mrs. Chaverra gave her $50 for arranging the deal.

On June 3, Agent Rodriguez again met with Mrs. Altamirano to buy another ounce of cocaine. They again drove to the same area, Agent Rodriguez paid $1,200, and Mrs. Altamirano went into the Chaverra home. On this occasion, however, the transaction did not proceed as smoothly as on May 30. Upon entering the Chaverra home, Mrs. Altamirano was told by Mrs. Chaverra that the cocaine was not ready. Mr. Chaverra then arrived; he and Mrs. Chaverra had a conversation. Mrs. Chaverra soon broke down in tears and explained that Alvaro had not yet delivered "it." Mr. Chaverra was not satisfied with his wife's response and called Alvaro on the phone, telling Mrs. Chaverra that Alvaro "has to obey." Alvaro soon arrived, carrying a paper bag containing one ounce of cocaine, which was given to Mrs. Altamirano. She then returned to Agent Rodriguez and delivered the drugs. Agent Rodriguez made a third one-ounce purchase on June 11. This time the transaction proceeded without incident. Mrs. Altamirano told her undercover customer that Mrs. Chaverra was her supplier and that the Chaverra house contained a stash of cocaine and large amounts of cash. With regard to this cocaine sale, Mrs. Altamirano testified that Alvaro delivered the cocaine, which Mrs. Chaverra then turned over to her housekeeper. Mr. Chaverra observed the transaction.

On June 21, 1986, Agent Rodriguez visited Mrs. Altamirano at her home. She indicated that she had just returned form Ecuador carrying one kilogram of cocaine. Agent Rodriguez testified that Mrs. Altamirano then explained how Maria de Soto's home at 5812 North California was used as a cocaine selling place, and that, at another apartment one-half block away, Ms. de Soto and some friends stored, packaged, and weighed cocaine. According to Agent Rodriguez, Mrs. Altamirano also told him that she would continue to deal with him directly because Ms. de Soto and Mrs. Chaverra did not want to deal with Agent Rodriguez.

The government offered as evidence numerous telephone pen register records from the telephone numbers of the Chaverras, Ms. de Soto, and Alvaro covering the period between April and October 1986. These records revealed numerous calls of short duration from the various residences to Florida and Colombia. For example, Ms. de Soto called numbers in Florida 300 times and numbers in Colombia 142 times during this period. One of her monthly phone bills totaled $1,596.

The investigation conducted by Agent Rodriguez did not bear immediate fruit because the investigation was not approved by his supervisors as a "Group 2 undercover operation" until January 1987. See Tr. IV at 68. Consequently, the relevant facts of this case next occur in mid-October 1986. On October 15, 1986, several officers from the Chicago Police Department-Drug Enforcement Administration Task Force (Task Force) were conducting a surveillance of Ms. de Soto's building at 5812 North Campbell because they had received an informer's tip that a cocaine delivery would soon be made to that address. That afternoon, they observed Mr. Chaverra drive up in front of the building in a gray Mercury Cougar, enter the building, and then exit ten minutes later. Agents attempted to follow him, but they eventually lost him in traffic.

At approximately 5:00 a.m. the following morning, the agents spotted a brown Mercury Marquis slowly circling the block. After three tours of the area, the car stopped in front of Ms. de Soto's building. Two persons got out of the car and went into the building; the agents could not tell which apartment they entered in the two-apartment building. Suspecting that this was the delivery vehicle, Chicago Police Lt. Maurice Dailey radioed for a canine narcotics team to inspect the car. A narcotics dog named Rex was walked by the car; its handler reported that Rex reacted positively to the presence of drugs in the rear of the Marquis.

About an hour later, 5812 North Campbell started bustling with activity. First, Sanchez was dropped off by a passing car and entered the building. Next, an Hispanic man arrived, walked up the stoop, and entered. About fifteen minutes later, an empty-handed Sanchez walked out of 5812 North Campbell and stopped on the stoop. He looked up and down the street and then walked to Alvaro's building -- 5752 North Campbell. Five to ten minutes later, Sanchez returned to 5812 North Campbell carrying a small paper bag. However, moments after entering the building, Sanchez again left. This time, he was accompanied by Ms. de Soto. The two looked up and down the street, and then together walked to and entered 5752 North Campbell. Ten to fifteen minutes later, Sanchez and Ms. de Soto, now toting a gray flight bag, left 5752 North Campbell and returned to 5812 North Campbell. The Hispanic man who had earlier entered Ms. de Soto's building then left, carrying a brown paper bag.

At around 12:15 p.m., Ms. de Soto left her building with two children and a man. They all entered the brown Marquis to which Rex had earlier reacted positively. Members of the surveillance team stopped the car and arrested Ms. de Soto and the man. A later search of the car revealed a secret compartment hidden in the interior of the gas tank. Inside that compartment was discovered more than ten kilograms of 91 percent pure cocaine.

At around 12:30-12:45 p.m., Mr. Chaverra, accompanied by two other men, arrived at 5812 North Campbell. They were stopped by the police. Upon their indicating that they were entering Ms. de Soto's building, they were arrested.

Members of the Task Force secured Ms. de Soto's apartment at 5812 North Campbell and Alvaro's apartment at 5752 North Campbell. Subsequently, the officers executed searches of these premises pursuant to search warrants. These searches produced a variety of incriminating evidence, including, from Ms. de Soto's apartment, large amounts of cash and ledgers and journals listing names and information later interpreted as being drug related. A triple-beam scale, a revolver, a safe, and four kilograms of cocaine were recovered from Alvaro's apartment.

In October 1986, just before the arrests at Ms. de Soto's apartment, Agent Rodriguez re-established contact with Mrs. Altamirano, who still did not know his undercover status. After the arrest of Mr. Chaverra and Ms. de Soto, a number of conversations between Agent Rodriguez and Mrs. Altamirano were recorded. In those conversations, she described the organization of the distribution operation and stated that Mrs. Chaverra was still willing and able to sell cocaine despite the arrest of her husband and her sister. No further undercover purchases ever occurred, however.

II

ANALYSIS

Each defendant raises a number of issues on appeal. We shall address each defendant's arguments separately.

A. Mr. Chaverra's Appeal*fn2

1. Admission of Testimony of Lt. Dailey

Mr. Chaverra submits that the district court abused its discretion in allowing Lt. Dailey to testify as an expert witness. Specifically, he contends that the district court erred in allowing Lt. Dailey to testify as to (1) his opinion on the manner in which drug dealers operate, including countersurveillance activities, (2) his opinion on the true nature of certain activities that he observed, and (3) his ...


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