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U.S. v. GONZALEZ

May 8, 2001

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LUIS GONZALEZ, DAVID CARLOS PEREZ, JAIME RODRIGUEZ, AND ALPHONSO CHAVEZ, DEFENDANT



The opinion of the court was delivered by: Elanie E. Bocklo, Judge

MEMORANDUM OPINION AND ORDER

On February 7, 2001, Luis Gonzalez, Jaime Rodriguez and Alphonso Chavez were convicted of conspiracy to possess cocaine with the intent to distribute. Mr. Gonzalez and Mr. Rodriguez were also convicted of attempt to possess cocaine with intent to distribute.*fn1 On February 8, Mr. Chavez brought a motion for a mistrial based on the post-verdict discovery that his attorney's business card had been in the wallet of one of the other defendants*fn2 when the wallet, which was admitted into evidence, went back to the jury for deliberations. He also claimed that the government's examination of Mr. Perez, in which the Assistant United States Attorney ("AUSA") asked Mr. Perez if he was afraid to testify, was so prejudicial that a mistrial was necessary. Mr. Gonzalez filed a motion for a new trial, joined by Mr. Chavez and Mr. Rodriguez, claiming the same errors as Mr. Chavez's original motion as well as six other errors that he claims would merit a new trial. I treat all of the arguments raised by Mr. Gonzalez as raised by Mr. Chavez and Mr. Rodriguez, and I treat Mr. Chavez's motion for a mistrial as one for a new trial under Fed. R. Crim. P. 33. The motions are denied.

I.

The government's theory at trial was that Mr. Chavez, Mr. Rodriguez and Mr. Gonzalez were part of a conspiracy to possess and distribute approximately 130 kilograms of cocaine. The evidence showed that, on May 24, 2000, Mr. Perez was pulled over by a state trooper (for driving 59 m.p.h. in a 55 m.p.h. zone) on Interstate 57 near Effingham, Illinois, while he was driving a tractor-trailer full of watermelons. He consented to a search of his truck, which uncovered wrapped packages of cocaine in a concealed trap compartment. Mr. Perez testified before the grand jury and at trial that he believed he was carrying marijuana, not cocaine. He agreed to cooperate with law enforcement officers and make a controlled delivery of the drugs. Mr. Perez testified that, at the time of his arrest, he did not know to whom he was supposed to deliver the drugs; someone was supposed to page him en route to arrange the drop.

While Mr. Perez was cooperating with law enforcement, he received a page from a number that belonged to a cell phone that was later recovered by the government from the green Jetta driven by Mr. Gonzalez. Telephone records showed that the same cell phone made calls to Mr. Rodriguez's cell phone. In a series of telephone conversations that were taped by the government, Mr. Perez arranged a meeting at the Comfort Inn hotel in Bolingbrook, Illinois. Mr. Gonzalez testified that the "unidentified male voice" on the tapes was his voice, and that he and Mr. Rodriguez went to the Comfort Inn to meet with Mr. Perez at around 2:30 a.m.

The following day, Mr. Chavez received a telephone call at work from his brother, Ramon.*fn3 Mr. Chavez testified that Ramon asked him to arrange for a warehouse to "soup up" a truck for a tractor pull, a sort of sport in which tractor trailer trucks pull heavy loads. Mr. Chavez arranged for use of the Acme Warehouse in Des Plaines, Illinois, at around 7:00 p.m. on May 25; he offered to pay two employees of the warehouse $500 each for their assistance. Around 10:00 a.m., Mr. Gonzalez told Mr. Perez that the delivery would be around 7:00 p.m., so that it would be "a little later, and so it'll be quieter, so there won't be so many people." During the day, Mr. Perez delivered the load of watermelons and drove his truck, without the trailer, to the interstate oasis in Des Plaines. Mr. Gonzalez drove to the oasis, followed by Mr. Rodriguez. Mr. Chavez picked up his brother Ramon in Chicago and drove with him to the oasis.

At the oasis, Mr. Gonzalez met and spoke with Mr. Perez and Ramon. Mr. Rodriguez was inside the building at the oasis, but Mr. Gonzalez testified that he went into another store and did not take part in the conversation with the others. Mr. Chavez dropped Ramon off and then went to park the car. He walked up to Ramon at the table with the others, and Ramon told him to go ahead and meet him at the warehouse. Mr. Chavez left, taking back roads to the warehouse. Mr. Gonzalez and Ramon left the meeting and went to a tool store, where they bought two sets of metric hex wrenches and some screwdrivers, and from there they drove to the warehouse. Mr. Perez drove the truck and followed Mr. Rodriguez to the warehouse, where Mr. Chavez was inside using the rest room. Mr. Rodriguez made a call on his cell phone and told the party on the other end of the line that he was worried they had been followed by the police. Telephone records show two calls from Mr. Rodriguez's cell phone to Mr. Gonzalez's cell phone around 7:00 p.m.

Mr. Rodriguez and Mr. Chavez were arrested at the warehouse, and they both attempted to flee on foot. Mr. Gonzalez and Ramon turned the car around and tried to flee in their car, but they were pulled over and arrested. The government recovered the wallets, cell phones and personal effects from all of the defendants at the scene. In Mr. Gonzalez's wallet, there was a cell phone receipt for a telephone number of a cell phone that was not recovered; Mr. Rodriguez also had cell phone receipts for this number. On the back of the receipt in Mr. Gonzalez's wallet, there were several telephone numbers, as well as notes that the government argued corresponded to Mr. Perez's location from one of the phone calls of the previous day. There was also a list of numbers that added up to 127, with the notation "one for the driver" that the government argued represented the number of packages of cocaine the defendants were expecting. The government recovered 139 packages of cocaine from the compartment in the truck. Mr. Rodriguez did not testify. Mr. Gonzalez testified that he never knew what was in the truck and that he thought he was going to the warehouse to fix a truck that was broken down. Mr. Chavez testified that he thought he was going to rig a truck with nitrous oxide in order to cheat in a tractor-pull.

II.

Mr. Gonzalez's motion for a new trial, joined by Mr. Chavez and Mr. Rodriguez, alleges eight errors. He claims that: (1) I should have instructed the jury that the interpreter's translation of the phrase "broken down" was inaccurate; (2) the presence of Mr. Chavez's attorney's card in Mr. Gonzalez's wallet was extra judicial evidence that the jury should not have been permitted to consider; (3) the defendants were denied the right of confrontation when I allowed the transcripts of the telephone conversations to go back to the jury because they contained dates about which there was no testimony; (4) an irrational verdict as to Mr. Chavez violated all of the defendants constitutional rights; (5) the instructions were deficient because they failed to define "possession" and "prohibited drug;" (6) the government's questions on re-cross of Mr. Perez about why he changed his mind about accepting a plea agreement from the government were unfounded and amounted to improper extra judicial "testimony" by the government; (7) I should have granted a hearing on Mr. Gonzalez's motion to suppress the evidence based on racial profiling; and (8) I should not have given the "ostrich" instruction.*fn4

Under Fed. R. Crim. P. 33, I may grant a new trial "if the interests of justice so require." A jury verdict should not be overturned lightly, but only where the "evidence preponderates heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand," United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999), or where a constitutional error had a reasonable probability of affecting the verdict, United States v. Berry, 64 F.3d 305, 307 (7th Cir. 1995).

A.

Mr. Gonzalez renews his arguments about my rulings on racial profiling and the "ostrich" instruction,*fn5 but he provides no reasoning or authority to suggest that they were in error, and provides no basis for me to reconsider my prior rulings. In reply, he argues that I should find that Mr. Perez's counsel was ineffective for failing to move to suppress on the basis of racial profiling, but I have already held that Mr. Gonzalez lacks standing to raise this argument on behalf of Mr. Perez. See Minute Order of 2/20/2001; Allen v. Wright, 468 U.S. 737, 755 (1984)

Likewise, Mr. Gonzalez does not provide any support for his argument that an "irrational" verdict as to Mr. Chavez (he was convicted of conspiracy to possess cocaine but acquitted of attempted possession of cocaine) implicates the constitutional rights of any of the defendants. The Seventh Circuit has routinely held that "perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived." Thompson v. Boggs, 33 F.3d 847, 856 (7th Cir. 1994). But even if I were to consider his argument on the merits, it has none. There is no inconsistency between a guilty verdict on conspiracy to possess cocaine, which requires only that the defendant himself knows of and intends to participate in the conspiracy and a verdict of not guilty on attempted possession, which requires that the defendant himself have committed a substantial step in furtherance of the ...


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