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United States v. Arocho

September 10, 2002


Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. No. 98 CR 103--James T. Moody, Judge.

Before Easterbrook, Manion, and Kanne, Circuit Judges.

The opinion of the court was delivered by: Manion, Circuit Judge


Reinaldo Arocho, Marc Flores and Jesse Colon were convicted of conspiring to distribute crack cocaine, as well as other drug-related offenses. The defendants were sentenced to terms of imprisonment ranging from 240 months to life in prison. The defendants appeal their convictions and sentences. We affirm.


In July 1998, Reinaldo A. Arocho, Marc Flores, Jesse Colon, Dennis Allen and John C. Spann *fn1 were arrested pursuant to a criminal complaint alleging various drug-related offenses. A grand jury subsequently returned an eight-count superseding indictment charging the five with various criminal violations. Three counts specifically named Colon: Count 3 charged Colon with possession with intent to distribute 50 grams or more of crack cocaine on January 29, 1998, in violation of 21 U.S.C. § 841(a)(1); Count 4 charged Colon with possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1); and Count 6 charged Colon with carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c). Four counts named all five co-defendants: Count 1 charged conspiracy to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 846; Count 2 charged that they maintained a crack house, in violation of 21 U.S.C. § 856(a)(1); Count 5 charged possession with intent to distribute five grams or more of crack cocaine on July 2, 1998, in violation of 21 U.S.C. § 841(a)(1); and Count 7 charged them with carrying a firearm during the drug trafficking offense of possession with intent to distribute crack cocaine, in violation of 18 U.S.C. § 924(c). Finally, Count 8 charged Arocho and Colon with attempting to corruptly influence the testimony of a witness, in violation of 18 U.S.C. § 1512(b)(1). This charge stemmed from Arocho and Colon's alleged attempt to persuade Dennis Allen to sign a false statement about the case after he had begun cooperating with the government.

Arocho, Flores and Colon (hereinafter jointly referred to as "appellants") pleaded not guilty and proceeded to trial. *fn2 Allen, pursuant to a plea agreement with the government, pleaded guilty to Count 1, and the remaining counts were dismissed. Allen then testified at the trial against his former co-conspirators. At trial, the jury heard Allen testify that Colon sold crack out of a house located at 1105 Clay Street in Gary, Indiana. Other witnesses (who were former "customers" of the appellants) corroborated Allen's assertion by testifying that they purchased crack from Colon, and sometimes other individuals, at the 1105 Clay Street location. The jury heard additional testimony from Allen and others that Colon cooked the crack, cut it into rocks, packaged it, and that if the operation ran out of inventory, Colon replenished the crack supply. The testimony also established that Colon was in charge of the drug operations at 1105 Clay Street. The witnesses further testified that there were several firearms present at the home during the drug transactions, and that Colon had used a firearm to threaten one of his neighbors.

In addition to this testimony, the jury heard from Chad Pante, a former customer of the appellants, who later became an informant for the Lake County Drug Task Force ("Task Force"). As an informant, Pante made four controlled purchases of crack from 1105 Clay Street, the last of which he made directly from Colon. After the controlled purchases, the Task Force obtained a search warrant for 1105 Clay Street. On January 29, 1998, the Task Force executed the search warrant, recovering 44.7 grams of heroin in a dresser, fourteen bags of crack cocaine in a leather jacket in a bedroom closet, and an electronic scale capable of measuring hundredths of a gram. The officers also recovered numerous firearms, including a loaded semiautomatic pistol located on the couch in the living room.

Following the search, Colon was arrested but later released, although it is unclear from the record the charges filed or the basis for his release. In any event, after his release, Colon continued to sell drugs from 1105 Clay Street, and at some point he expanded his operations to the residence attached to 1105 Clay Street, 1113 Clay Street, a house owned by William Price. When Price confronted Colon about his operation, Colon threatened Price with a gun and told Price that he wasn't leaving. Notwithstanding this threat, on June 26, 1998 Price called the Gary Police and informed them of Colon's drug dealing and threats. The police responded to Price's complaint, going to 1105 Clay Street. Dennis Allen answered the door. After identifying themselves, the officers asked if they could come in and Allen allowed them to enter. In doing so, Allen told the officers that no one else was home. Once inside, the officers saw a package of marijuana lying on the floor. At that point, appellant Marc Flores walked out of the kitchen. Now knowing that drugs were involved and that Allen was not alone in the house, the police immediately conducted a protective sweep of the residence. In the kitchen on a table, the officers found packaging material near a plate on which there were several rocks of crack cocaine and a razor blade. Upstairs they found a .38 caliber revolver.

Upon recovering this evidence of drug trafficking, the Gary Police turned the case over to the FBI's Gary Response Investigative Team, commonly referred to as GRIT. GRIT then obtained a search warrant for 1105 Clay Street, executing it on July 2, 1998. During the search, GRIT discovered on the floor of a bedroom 6.5 grams of rock cocaine, $167 in cash, and a crack pipe. The officers also recovered several documents bearing Colon's name and the address of 1105 Clay Street. In the kitchen, the officers found baking soda and implements commonly used for cooking crack, and in the attic they recovered a .22 caliber revolver.

At trial, the government presented additional evidence pertaining to the charges against Flores and Arocho. Specifically, the government presented Price's testimony that he had seen Marc Flores going into 1105 Clay Street in both May and June. Allen also testified that on June 26, the day of the second search of 1105 Clay Street, Flores had been selling marijuana from the house. Additionally, Allen testified that both Flores and Arocho sold crack for Colon, answered the door for customers, collected their money and then handed out the crack. Allen also explained that if they ran out of drugs, they would page Colon who would return with more. Additionally, Allen testified that Flores would sometimes stand outside as a lookout, and that Arocho would help cook and cut the crack. The evidence also established that Arocho had firearms during the transactions and that Flores would handle Colon and Arocho's guns during various drug transactions as well. Finally, Allen testified that Arocho was in charge of the drug operation when Colon was away from the house.

Based on this evidence, the jury convicted the appellants on all counts. On January 19, 2000 Flores was sentenced to 262 months' imprisonment on Counts 1 and 5, and 240 months' imprisonment on Count 2, all to be served concurrently, and a consecutive sentence of 60 months on Count 7, for a total prison term of 322 months. Arocho was sentenced to a term of imprisonment of 327 months on Counts 1 and 5, 240 months on Count 2, and 120 months on Count 8, all to be served concurrently, and a consecutive sentence of 60 months on Count 7, for a total term of imprisonment of 387 months.

Colon's sentencing hearing was scheduled for February 3, 2000. While waiting for the hearing, Allen, who was scheduled to testify on the government's behalf, informed the government that he thought he recognized one of the jurors who had sat during the trial. The government immediately informed the court of this disclosure. The court decided to sentence Colon first and then inquire into this issue. The court sentenced Colon to life imprisonment on Counts 1 and 3, 240 months on Counts 2 and 4, 480 months on Count 5, and 120 months on Count 8, all to be served concurrently, plus consecutive sentences of five years on Count 6 and 20 years on Count 7 for a total sentence of life plus 25 years.

After sentencing Colon, the district court then questioned Allen as to his knowledge of one of the jurors. Allen explained that he was about "fifty percent" sure that he recognized one of the jurors as his former landlord, Alvin Mickens--although Allen identified the juror as Alvin "Macklin." Mickens was later called back to court and asked further questions about his relationship with Allen. In response to detailed questions, Mickens explained that Allen's girlfriend or wife (he wasn't sure which) lived in an apartment owned by his grandparents, and that he may have spoken to Allen on about five occasions for a total of approximately 30 minutes. The appellants filed a motion for a new trial based on Mickens' relationship with Allen, arguing that Mickens had not honestly answered the pre-trial voir dire questions. However, during that voir dire Mickens did disclose that he knew Allen and that they had lived in the same building. Accordingly, the district court denied the appellants' motion for a new trial. They now appeal from this denial, as well as challenge their convictions and sentences on other grounds.


On appeal, the appellants first argue that the district court erred in denying their motion for a new trial based on juror Mickens' knowledge of Allen. The appellants also challenge the district court's evidentiary ruling prohibiting them from inquiring into the specific reduction in sentence or sentencing range that Allen and another cooperating witness, Carmen Hernandez, received for testifying on behalf of the government. Additionally, all of the appellants challenge the constitutionality of 21 U.S.C. § 841 and, alternatively, Colon challenges his sentence based on the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Colon and Arocho also argue that the evidence was insufficient to support their convictions for witness tampering. Colon, in a pro se supplemental brief, further argues that Congress exceeded its power to regulate commerce in passing 18 U.S.C. § 924(c) (Using a Firearm During the Commission of a Drug Offense) and 21 U.S.C. § 856(a)(1) (Maintaining a Drug House Offense), and that under United States v. Lopez, 514 U.S. 549 (1995), those statutes are unconstitutional. Finally, Flores maintains that the district court erred in refusing to grant him a sentencing reduction pursuant to U.S.S.G. § 3B1.2 for being a minor or minimal participant.

A. Motion for a New Trial

The appellants first contend that they are entitled to a new trial because juror Mickens did not honestly respond to questions during voir dire. To obtain a new trial on this basis, a party must demonstrate that a juror failed to answer honestly a material question on voir dire, and that had the juror provided the correct response, that response would have provided a valid basis for a challenge for cause. See McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984); United States v. May, 214 F.3d 900, 907 (7th Cir. 2000). The district court denied the appellants' motion for a new trial, concluding that they had "not shown that juror Mickens' answers to voir dire questions were in any respect not true. . . ." We review this decision for an abuse of discretion. United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989).

Like the district court, we begin by asking whether Mickens failed to honestly answer a material question at voir dire, and only if we answer that question in the affirmative do we proceed to the second prong and determine whether the response would have provided a valid basis to challenge the juror for cause. To begin this inquiry, we turn to the voir dire process that took place in this case.

In this case, the district court judge began voir dire by randomly selecting twelve prospective jurors and seating them in the jury box, with the other potential jurors remaining in the gallery area. Before questioning those in the jury box, the district court directed the remaining venire in the gallery area to listen carefully to his questions in case they were called to the jury box as a potential juror. One of the questions the court asked prospective jurors was whether they had any knowledge of or relationship to any of the people on the witness list. At this time, Mickens was seated in the gallery area. Nearly four hours later, Mickens moved to the jury box, at which time he volunteered to the court that he would have answered "yes" to one of the court's prior questions. Mickens informed the court that he recognized one of the names from the list of prospective witnesses--an individual named Dennis Allen. The following colloquy then took place between the court and Mickens:

Q: . . . You know a Dennis Allen?

A: There was a Dennis Allen that lived in the same building I lived in a couple months ago.

Q: Do you know how old your Dennis Allen is approximately?

A: Guess in his forties. I have--

Q: In his forties. And ...

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