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.
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
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. 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).
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 ...