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United States v. Rodriguez

October 27, 1997

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

JOSE RODRIGUEZ,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.

No. 92 CR 22--James T. Moody, Judge.

Before POSNER, Chief Judge, and COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

ARGUED SEPTEMBER 23, 1994

DECIDED APRIL 27, 1995

On February 13, 1992, a grand jury returned a thirty-five count indictment against fifteen individuals, including the defendant, Jose Rodriguez. Counts two and thirty-four were the only counts which specifically named Rodriguez; count two charged him with conspiring to possess with intent to distribute cocaine, *fn1 in violation of 21 U.S.C. secs. 841(a)(1) and 846, and count thirty-four charged him with money laundering and aiding and abetting money laundering, in violation of 18 U.S.C. secs. 2 and 1956(a) (1)(B)(i). A jury convicted Rodriguez of both charges, conspiring to possess with intent to distribute cocaine and money laundering.

The court sentenced Rodriguez to two concurrent seventy-month terms of imprisonment, to be followed by two concurrent six-year terms of supervised release. The court also imposed a $12,500 fine and a $100 special assessment. Rodriguez seeks reversal of his convictions, asserting that: (1) the government's evidence was insufficient to support his conviction on either charge; (2) he received ineffective assistance of counsel in violation of his Sixth Amendment rights; and (3) the trial court committed reversible error when it failed to instruct the jury regarding his midtrial absence. We affirm.

I. BACKGROUND

Jose Rodriguez was a member of the Rodriguez-Corral drug alliance which distributed cocaine, heroin, and marijuana throughout Northern Indiana and Illinois. *fn2 Gilberto Rodriguez-Corral ("Gilberto"), the defendant's half brother, and Luis Corral were the leaders of the alliance. Gilberto played a central role in the drug ring; he would purchase one kilogram of cocaine from each shipment, and then divide the one kilogram into smaller amounts for distribution to the other members of the conspiracy. Each time Gilberto purchased cocaine, a different member of the group would become the "holder." The holder would sell the cocaine to other members of the distribution ring who would in turn re-sell it to individual purchasers.

One point of distribution for the cocaine--a front to conceal the ring's drug distribution--was a video store located in Calumet City, Illinois, owned by another member of the conspiracy, Maria Cabello ("Maria"), Gilberto's girlfriend. Gilberto (the defendant's half brother) and Felipe Rodriguez ("Felipe"), the defendant's brother, leased the video store from Helen Rogalski, who testified at trial that Barbara Rodriguez, the defendant's wife, informed her that Barbara and Maria operated the store and that the defendant and Felipe were responsible for paying the business expenses. *fn3 Rogalski also testified that Barbara and the defendant paid the store's monthly rent of $700 in cash.

Maria's brother, Ramiro Cabello, frequently visited the video store and received from Maria cocaine which he later sold. Elizabeth Santos, Ramiro's girlfriend, testified that between late 1988 and February 1990, she accompanied Ramiro to the video store at least one-hundred times and that on each occasion, Maria had handed him approximately five ounces of cocaine. Santos also testified that Ramiro did not pay for the drugs when Maria gave them to him, but that Maria would meet with Ramiro later that night to receive payment from the proceeds of the drug sales. *fn4

Santos witnessed the defendant participate in one of these cocaine transactions. During one of her visits to the video store with Ramiro, she was in the rear of the store playing a video game while she waited for the delivery of the drugs, when she saw the defendant arrive and give Maria a brown paper lunch bag which Santos testified contained five ounces of cocaine. Santos saw Maria hand the bag containing cocaine to Ramiro, who then left the store. Santos testified that she knew the defendant personally, having seen him several times at a bar Ramiro owned in East Chicago, Indiana, and recognized him when he delivered the drugs to Maria.

Several witnesses also testified at trial concerning the efforts of the conspirators to conceal the source of their illegal drug proceeds. Members of the alliance purchased several properties; in some cases, the actual purchaser of the home would place the title in the name of another member of the conspiracy, and in other cases, one member of the conspiracy would purchase a home, but another member would move in and occupy it. *fn5 At trial, the government argued that these purchases and occupancy patterns of this nature demonstrate an effort on the part of the alliance to conceal the true ownership of the homes, as well as the illegal source of the funds--drug sale proceeds--used to purchase them.

According to the testimony, the conspirators' efforts to conceal their drug profits began on December 8, 1988, when Maria Cabello, a conspiracy member, purchased a home on Sheffield Avenue in Hammond, Indiana, for $12,000. In spite of the fact that Maria never resided in this home, the title to the house remained in her name, while Luis Corral lived there.

The second suspect home purchase occurred in September 1990, when Gilberto and the defendant purchased a house on Towle Street in Hammond, Indiana for $13,500. Real estate agent Richard Rombotis testified that the defendant's cousin, Victor Arredondo, deposited a $500 check in earnest money, drawn on the account of Jose and Barbara Rodriguez. Arredondo testified that Gilberto had agreed to help him pay for the home, and that in return, he planned to make monthly rent payments to Gilberto. At the closing for the house, Arredondo paid the $13,000 balance with two cashier's checks: one for $7,000, purchased by Rodriguez, and the other for $6,000, purchased by Gilberto. Although Arredondo was listed on the title as the owner of this house, he refused to live there, refused to pay the $500 monthly rent Gilberto demanded, and later requested that his name be removed from the title. However, title to the house remained in Arredondo's name.

A third questionable home purchase occurred on February 5, 1991, when the defendant purchased a second house on Pulaski Street in Calumet City, Illinois. Rodriguez and Luis Corral co-signed a purchase agreement, and Rodriguez made a $1,000 cash downpayment to be applied as earnest money toward the purchase of the property. The sales agent, Clifford Rapp, gave Rodriguez a receipt and photocopied the currency. *fn6 Barbara Rodriguez's name was later substituted for Corral's on the purchase agreement. Although the defendant and his wife paid for the home, Gilberto and his girlfriend Maria resided there. *fn7

The Drug Enforcement Agency ("DEA") began investigating the Rodriguez-Corral drug alliance late in 1990, after DEA agents arrested Jesus Adame for possession of sixteen pounds of marijuana. Subsequent to his arrest and while under the direction of the agents, Adame agreed to cooperate with them and participate in controlled drug buys from members of the alliance, including Luis Corral. In addition, DEA agents placed several of the properties owned by drug ring members under surveillance. DEA agent Hargrove testified that during the surveillance of the house on Sheffield Avenue, he discovered remnants of packaging customarily used for drug sales and envelopes inscribed with monetary figures in the garbage placed at the curbside. A DEA agent also had Luis Corral under surveillance as he returned to the house on Sheffield after his participation in a controlled drug transaction with the DEA informant, Adame.

Based on this information and on other evidence in the DEA's possession, DEA agents secured and executed warrants to search the houses located on Sheffield and Pulaski, as well as the defendant's home on 156th Street in Calumet City, Illinois. During the search of the house on Sheffield, the DEA recovered cocaine, marijuana, $223,292 in United States currency, memo and address books, *fn8 a digital scale, and plastic duct-taped packages customarily used in cocaine sales. Gilberto and Maria were present when the DEA searched the house on Pulaski, where the DEA recovered cocaine, $7,200 in United States currency, and a photograph of Gilberto, Corral, the defendant and his wife, Barbara. While the DEA agents were searching this house, the defendant arrived at the house, told the agents that he owned the property, and asked to speak with his brother. During the search of the defendant's home on 156th Street in Calumet City, DEA agent O'Meara found a DEA notification of seizure form sent to Gilberto pertaining to $7,200 seized from the earlier search of Gilberto's residence on Pulaski in a garbage bag behind the house. The DEA seized the defendant's briefcase, *fn9 which contained the search warrant executed for the earlier search of the house on Sheffield, photographs of that house, and a receipt for property seized during the DEA's prior search of that house.

The trial of Jose Rodriguez, Maria Cabello and Ramiro Cabello commenced on August 25, 1992 with all of the defendants present, but on the fifth day of trial Rodriguez failed to appear. When the court asked Rodriguez's attorney about his client's whereabouts and his attorney was unable to offer any explanation, the court issued a bench warrant for his arrest, and resumed the trial in Rodriguez's absence. Rodriguez's attorney asked the court to direct the prosecution to refrain from mentioning his client's absence for the remainder of the trial and to give the jurors a limiting instruction admonishing them to disregard his client's absence. Counsel for the two remaining co-defendants objected to the requested limiting instruction. The court declined to instruct the jurors regarding Rodriguez's absence, but ordered the prosecutor and defense counsel to avoid referring to Rodriguez's absence during the trial. After the close of testimony but before final arguments, the court held a jury instruction conference, and the judge inquired of the attorneys again if they wanted a limiting instruction directing the ...


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