isconsin. No. 96-CR-163 Rudolph T. Randa, Judge.
Before POSNER, Chief Judge, and KANNE and EVANS, Circuit Judges.
What really happened at a Hardee's fast-food restaurant outside Kenosha, Wisconsin, on a hot August day a few years ago? Was Wilfredo Bonilla-Comacho just one of the honest, hardworking folks at the restaurant hoping to enjoy a burger and fries? or was he part of a band of drug dealers (unknowingly infiltrated by a couple of double-crossers) bent on doing a multi-kilo cocaine transaction? The jury thought he wasn't at Hardee's to do lunch, so we consider today his appeal, which followed his conviction for conspiracy to attempt to possess cocaine with intent to distribute (21 U.S.C. sec.sec. 841(a)(1) and 846) and using and carrying a firearm during a drug trafficking crime (18 U.S.C. sec. 924(c)(1)). Because Bonilla was convicted, we'll start with the government's version of the facts.
The story began when Edwin Cruz hooked up with a fellow named Jose Lozano in the Humboldt Park area of Chicago. Cruz let on that he was in the market to buy, as a "middleman," a bit of cocaine from Lozano. This was not a very smart move because Lozano, it turned out, was doing work for the federal Drug Enforcement Administration as a confidential informant. At a second meeting, Lozano told Cruz that the negotiations -- and the deal -- would take place in Kenosha, 50 or so miles north of Chicago just beyond the Illinois-Wisconsin border.
A few days later, Cruz and Lozano drove to a Hardee's in Kenosha, where they met with Jose Chamorro, an undercover Illinois State Police special agent who pretended he was Lozano's supplier. The three then went to a room at the Knight's Inn motel -- which the cops had rigged with a hidden video camera -- and discussed the deal. Cruz expressed interest in eventually purchasing up to 15 kilos of cocaine. As the men talked, a DEA agent, undercover of course, arrived with a duffel bag containing 11 kilos of cocaine. Cruz checked the dope and took a small sample back to Chicago.
Later that day Cruz called Lozano and said "his people" did not have enough money for the entire 11 kilos but that they could buy 3 kilos the next day for $20,000 each. Cruz said he would have enough money to purchase the other kilos in a short while. After checking with his law enforcement contacts, Lozano okayed the 3-kilo deal.
The next day, Cruz, Lozano, and Officer Chamorro again met at the Kenosha Hardee's. After letting Chamorro know he was ready to do the deal, Cruz went to the parking lot on the west side of the restaurant and met with several men, including Bonilla. Cruz then returned to the restaurant and took Chamorro to the east parking lot where Rocco D'Ambrosio, whom Cruz called the "money man," was sitting in a jet black Corvette. D'Ambrosio handed Chamorro a brown paper bag containing bundles of money. Chamorro glanced at the cash and said it didn't add up to 60 G's. After thumbing through the bills, Chamorro announced they were $20,000 short.
Cruz and Chamorro returned to the restaurant to speak with Lozano. They were joined by Bonilla and another of Cruz's companions, Anselmo (or perhaps Enselmo) Echevarria. Although Cruz skipped the niceties of proper introductions, he did tell Chamorro "[t]hey are with me" and "[t]hey are buying a kilogram". Affecting a disgusted attitude, Chamorro reiterated that $20,000 was missing and the deal was off until all the cash was in place. Cruz interposed that "his people" had the rest of the money, at which point Echevarria and Bonilla each confirmed that they had the rest of the dough by gesturing toward their chests or waists.
Chamorro told Cruz, Echevarria, and Bonilla to go into the Hardee's bathroom and get all the cash in Cruz's hands, which they did. Then, back at the Corvette, Cruz added several white mailing envelopes to the bag of money. Opening a few random envelopes, Chamorro counted about $1,000 in each. Adding the amount estimated to be in the envelopes to his prior calculation, Chamorro announced that Cruz and his companions were still about a grand short.
While discussing the money, Officer Chamorro also told Cruz, Echevarria, and Bonilla that he had 10 more kilos of cocaine to sell and asked if they would be able to do a second transaction. Cruz said he would need a few days before considering another purchase. Bonilla said he was interested in one of the kilos. Echevarria or Cruz stated they could easily sell up to 10 kilos in the Humboldt Park area.
At this point D'Ambrosio threw in the remainder of the money needed to close the 3-kilo deal, saying "Wilfredo owes me a thousand." Chamorro, satisfied that the cash was at hand, walked away from the Corvette, gave the high sign, and a bevy of cops -- in riot gear with guns drawn -- closed in for the kill.
Bonilla took off running but was stopped and ordered to the ground by a Kenosha police detective. The detective patted Bonilla down and found a loaded .357 caliber Smith & Wesson revolver tucked in the rear waistband of his pants. According to an agent from the Bureau of Alcohol, Tobacco and Firearms who watched the deal unfold, the agents surveilling the transaction guessed, based on "the way Mr. Bonilla was posturing himself and the way he was positioning himself in the deal[,] that if ...