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United States v. Bolivar

July 8, 2008


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04-CR-925-5-James B. Zagel, Judge.

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


Before MANION, ROVNER, and EVANS, Circuit Judges.

Miguel Bolivar was charged along with his daughter and nephew with distributing a small quantity of cocaine and also conspiring to sell a larger amount. See 21 U.S.C. §§ 841(a)(1), 846. The daughter and nephew pleaded guilty; she testified for the government and he, for the defense. The jury found Bolivar guilty of both crimes. On appeal, he chiefly argues that the government proved his involvement in a drug offense different from the ones it charged. He also challenges several evidentiary rulings. We affirm Bolivar's convictions.

On October 13, 2004, informant William Gaddy met with Lupe Perez, Bolivar's nephew, and expressed his interest in buying cocaine from Perez. Gaddy recorded the conversation, as he did all of his conversations with the conspirators, over the next six days. The two men agreed that Perez would supply Gaddy with a sample of cocaine as a precursor to a larger transaction. During this meeting Perez received a call on his cell phone. Gaddy overheard the male caller promise Perez he would show Gaddy "what it is." Perez then handed the phone to Gaddy, who listened as the caller encouraged him to look at their cocaine. At the time Perez did not identify the caller by name, but he did say he was living at the caller's residence. Later that day Gaddy and Perez met again. Perez elaborated that he lived with his uncle, and he estimated that, between the two of them, they ought to have about 27 "keys" of cocaine in stock.

The next day Perez contacted Gaddy and said he was sending his cousin to deliver a sample of cocaine. A short time later Bolivar's daughter, Michelle Bolivar, delivered about two grams. She identified herself to Gaddy as Perez's cousin, and said that Perez's uncle was her father, Miguel Bolivar. Michelle, who revealed that she did not get along with her father, warned Gaddy not to tell Bolivar they had met because she feared that Bolivar would harm them both if he knew she was involved in a drug deal. Michelle mentioned that Perez had not invited her inside the location where she picked up the sample, which led her to believe that her father was at that location.

On October 15, Gaddy spoke to Perez by telephone and pressed him to proceed with the main delivery. Gaddy demanded to speak to Perez's uncle, and Perez gave him Bolivar's telephone number. Gaddy called and arranged to meet Bolivar. Later that day surveillance agents watched the meeting and listened to the conversation as it was being broadcast (and recorded) by equipment concealed on Gaddy. Bolivar said he no longer had any of the cocaine he possessed when he discussed the deal with Perez a few days earlier. The last of the good stock, Bolivar explained, was the "picture" he had given to Perez to pass along to Gaddy. Bolivar added that he and Perez did have inferior cocaine that Gaddy could buy, but he said he would prefer to supply Gaddy with high-quality cocaine and asked him to be patient. When Gaddy replied that he did not want to wait, Bolivar reassured him that "we gonna deal," and told him that Perez was out talking to their suppliers.

Over the next several days, Gaddy continued negotiating by telephone with Perez, Michelle Bolivar, and one of Michelle's friends, Erika Musgraves. Perez and the two women promised to procure five kilograms of cocaine from one of their suppliers, "Claudia," and to deliver the drugs to Gaddy the night of October 19. On that evening Perez, Michelle, and Musgraves delivered one kilogram and were promptly arrested by surveillance agents. Musgraves led the agents to four more kilogram bricks concealed in Perez's van.

Bolivar was arrested at his residence in January 2005. The agents seized his cell phone and a digital scale covered with cocaine residue. After Miranda warnings, Bolivar told the agents he knew about large quantities of drugs coming from Mexico, but was hesitant to cooperate because the dealers were dangerous, particularly since rumors that Michelle was helping the DEA had circulated widely. Bolivar, however, never assisted the government.

Bolivar, Perez, Michelle, and Musgraves were charged with conspiring to possess and distribute cocaine beginning on October 13, 2004, and continuing until October 20. All but Musgraves also were charged with distributing the cocaine sample on October 14, 2004. Perez and Michelle both pleaded guilty to the conspiracy charge. Bolivar and Musgraves proceeded to trial together.

Before trial the government proffered its conspiracy evidence to support the conditional admission of coconspirator statements under Federal Rule of Evidence 801(d)(2)(E). The government did not intend to call Gaddy as a witness, so most of those statements would be introduced through the conversations he recorded. The government asserted that the recorded conversations evidenced Bolivar's participation in a conspiracy with Perez, Michelle, and Musgraves to sell drugs to Gaddy. Bolivar responded that none of the conversations should be admitted because, he insisted, the government's proffer did not evidence a conspiracy even under the preponderance standard applicable in making a threshold determination of admissibility. See United States v. Stotts, 323 F.3d 520, 521 (7th Cir. 2003). Bolivar also singled out the conversation on October 13, 2004, among Perez, Gaddy, and the male caller whom Perez did not identify by name. That conversation could not be admitted, Bolivar insisted, because the government could not identify the voice of the person who called Perez's cell phone and spoke to Gaddy. Bolivar added that the "uncle" Perez referred to in his second conversation with Gaddy on October 13 could be anyone, and he emphasized that it was Claudia who supplied the kilograms of cocaine that Perez, Michelle, and Musgraves set out to deliver to Gaddy on October 19. The government assured the court that the transcript it would give to the jury for the first October 13 conversation would identify the caller only as an "unidentified male." The district court ruled that the government's proffer was sufficient to support the conditional admission of the recorded coconspirator statements.

The government also introduced Bolivar's post-arrest representation that he could provide the agents with information about large amounts of drugs coming from Mexico. Bolivar objected that his statement was not relevant to the charged conspiracy and thus constituted "bad acts" evidence that should be excluded under Federal Rule of Evidence 404(b). But the district court agreed with the government that Bolivar's statement corroborated the connections to the drug trade he mentioned in talking to Gaddy. Therefore, the court reasoned, the statement was not extraneous.

After the government presented all of the recorded conversations between Bolivar, Gaddy, Perez, Michelle, and Musgraves, as well as Bolivar's post-arrest statement, Michelle testified for the government. On direct examination she confirmed that she had delivered the cocaine sample from Perez to Gaddy on October 14, and she reiterated her recorded representation to Gaddy during that delivery that she believed her father had been present at the location where she picked up the sample from Perez because he met her outside instead of inviting her in. She also testified that on the evening of October 19 she, Perez, and Musgraves had met with a drug dealer named Claudia and a friend of Claudia's named Ismael to obtain the drugs. On cross-examination, though, Michelle displayed less certainty about her belief that Bolivar was present when she obtained the sample from Perez. She conceded that on the day she delivered the sample she had visited Perez at the house two or three times and had been invited inside at least once. She could no longer remember, she said, whether she actually obtained the drug sample during a visit in which Perez invited her inside.

Perez, despite his guilty plea to the conspiracy, testified for the defense and denied that Bolivar had been involved in the charged crimes. Perez said he had copied a key to Bolivar's house and stayed there when Bolivar was away, but he also lived at other locations. The scale found at this house was his, he said, and Bolivar was unaware it was there. Perez explained that his frequent references to his "uncle" were not references to Bolivar. He insisted that he called several drug dealers "uncle" out of respect, ...

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