Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 CR 156-John W. Darrah, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
Before RIPPLE, SYKES, and TINDER, Circuit Judges.
Gustavo Campos was charged with nine other defendants in a multi-count indictment with a drug conspiracy and other drug-related crimes. A jury convicted him as charged, and the district judge sentenced him to a term of life imprisonment. Campos contends on appeal that there was a fatal variance between the conspiracy charged in the indictment and the government's proof at trial. He also contends that the district court erred in declining to give his proposed multiple conspiracies jury instruction and in denying his motion to suppress wiretap evidence. He challenges the reasonableness of his sentence as well. We affirm.
This case involves the large-scale drug-trafficking of hundreds of kilograms of cocaine and thousands of pounds of marijuana from Texas to Chicago from 2001 into the early part of 2004. The trafficking had three phases, but it involved a constant and common goal-the transportation of large quantities of cocaine and marijuana from Texas to Chicago for re-sale there. Another constant factor in this situation was the guiding hand of Gustavo Campos at the center of every aspect of the trafficking, from top to bottom. In the first phase of operation, from the summer of 2001 to March 2002, several trips were made to trans-port large quantities of cocaine and marijuana from Texas to Chicago using semi-trailers which were towed by semi-tractors. The drugs were hidden in false compartments located in the semi-trailers. In March 2002, Drug Enforcement Agency ("DEA") agents seized one of these semi-trailers while en route from Texas to Chicago with 250 kilograms of cocaine. After this seizure, a second phase began, lasting from about April 2002 to June 2003, in which passenger vehicles including rental cars were used to transport drugs and money. This phase ended in June 2003, when the DEA seized a rental car after it had been loaded with cash for a trip from Chicago to Texas; the ensuing search led to the discovery of over $135,000 in hidden cash. At that point, a third, but familiar, phase of operation began in which the use of semi-tractors/ trailers resumed as the mode of drug transportation. This third and final phase spanned from July 2003 to February 2004. On February 10, 2004, DEA agents seized approximately 325 kilograms of cocaine from a Chicago ware-house, bringing the operating aspects of this trafficking to a close, and shifting the governmental scrutiny of it from investigation to prosecution.
The evidence at trial demonstrated that the three phases of trafficking described above constituted a conspiracy. Campos led the conspiracy, running all aspects-financing, recruiting, and operations-from Chicago. Felix Herrera was the head of the conspiracy's Texas operations. He coordinated the loading of drugs into semi-trailers and passenger vehicles. Martin Vasquez supervised the semi-tractor/trailer transportation and, in many cases, drove the passenger cars between Chicago and Texas. Campos, Herrera, and Vasquez participated in the conspiracy throughout all three phases.
In 2001 Campos was looking for drivers to transport drugs from Texas to Chicago. So he asked Vasquez, a former trailer salesman, if he knew of a truck driver eligible to drive in all 48 contiguous states. Vasquez introduced Campos to Jerry Maj, the owner of Jerry's Advanced Trucking located in Summit, Illinois. Campos and Vasquez met with Maj, and Campos offered Maj $25,000 to drive a semi-tractor/trailer round trip from Chicago to Texas, returning with drugs, specifically marijuana. Maj accepted the offer. At about the same time, Jacek (or Jack) Zelek was working as a commercial truck driver for Maj. Zelek's semi-tractor needed repairs, so he asked Maj for a loan of $20,000. Maj agreed to loan Zelek the money, if Zelek would transport drugs from Texas to Chicago. Zelek agreed.
In or around August 2001, Campos arranged to have the inside of the semi-trailer outfitted with a false front wall for purposes of concealing large quantities of drugs and cash for transportation between Texas and Chicago. Campos offered Vasquez $5,000 to travel to Texas with Zelek, meet with Campos's Texas contacts, including Herrera, and deliver money to be hidden in the trailer. Vasquez accepted. As a result, once the customization of the semi-trailer was finished, Campos conducted a final inspection and placed $1,475,000 in cash behind the false wall. The next day Zelek and Vasquez made the trip from Chicago to Texas. Upon their arrival, Vasquez called Campos who said that he and Zelek would be met by a group of men whom they should follow to another location. A short while later, Vasquez and Zelek were approached by some men, just as Campos had indicated. Vasquez and Zelek followed the group to a residential area where they parked the semi-tractor/trailer. Zelek remained in the semi-tractor while Vasquez removed the false front wall from the semi-trailer and the cash was removed. Campos repeatedly called Vasquez to check on the status of the operation. Once their mission was accomplished, Vasquez and Zelek returned to Chicago.
Zelek made six more round trips between Chicago and McAllen or Roma, Texas, for the conspiracy from August to December 2001. On all but two, he returned with a semi-tractor/trailer carrying drugs. Zelek was directed to leave the semi-tractor/trailer at a particular location, wait while the drugs and, typically vegetables, which were used to hide the drugs, were loaded onto the trailer, and then drive the semi-tractor/trailer back to Chicago. Campos paid Maj $25,000 for Zelek's first trip. But after that, Maj demanded more money, so Campos agreed to pay him $50,000 for each trip Zelek made for the organization.
On December 4, 2001, DEA agents stopped Zelek's semi-tractor/trailer in Texas to conduct a routine inspection. They discovered 1,754 pounds of marijuana hidden in the semi-trailer and placed Zelek under arrest. Shortly after Zelek's arrest, Campos began searching for a replacement driver. His brother, Maximino Campos, recom-mended a commercial truck driver, Rogelio (or Roger) Perez.*fn1
On December 19, 2001, Maximino, acting at Campos's direction, offered to pay Perez to make round trips between Chicago and Texas. Perez was interested, so he was told to meet with Campos the next day. Perez met with Campos who told Perez that if he were a loyal member of the conspiracy, he would make a lot of money. At the end of the meeting, Campos offered Perez a position with the conspiracy, which Perez accepted. Campos told Perez that he would be in charge of transporting empty semi-trailers from Chicago to Texas and returning them to Chicago loaded with drugs. After the meeting with Campos, Perez met with Vasquez.
A while later, Perez picked up an empty semi-trailer to haul to Roma, Texas. Vasquez gave Perez detailed driving directions from Chicago to Texas and a phone number with which to contact him when Perez reached Texas. Perez drove the semi-trailer to Texas. When he arrived, he was unable to reach Vasquez, so he called Maximino who told him that Herrera would meet him. Perez met with Herrera, dropped off the empty semi-trailer, and then returned to Chicago.
In early February 2002, Campos met with Perez to ask him to make another round trip from Chicago to Texas. Unlike the first trip, this trip would involve transporting drugs hidden in a semi-trailer from Texas to Chicago. Campos offered to buy Perez a semi-tractor so he could make multiple round trips to and from Texas. Campos told Perez that he had a five-year contract which required him to transport six tons of cocaine from Texas to Chicago. Campos did not follow-up on his offer to buy Perez a semi-tractor, so Perez attempted to borrow one from a friend. But the friend was aware of the nature of the trip and refused to lend his semi-tractor. Campos told Perez to offer the friend more money ($40,000), but the friend still refused. A few days later, Campos summoned Perez to a meeting at which he expressed frustration with Perez's inability to obtain a semi-tractor. Campos told Perez that people in Texas were waiting for him. Perez responded that he would make one more attempt to obtain a semi-tractor. He contacted law enforcement instead.
In late February 2002, Perez, by then working with the DEA, told Campos that he found a semi-tractor and that his friend Willie Chester, a/k/a "Rock," was willing to make the round trip between Chicago and Texas, bringing back drugs. Campos met with Rock to confirm that he could obtain the semi-tractor and make the trip. Satisfied with Rock, Campos paid him $9,000 in cash. Unbeknownst to Campos, however, Rock, like Perez, had begun working with the DEA. Rock made the round trip between Chicago and Texas. During the trip he stayed in constant contact with Perez who stayed in constant contact with Campos.
On March 1, 2002, Rock, escorted by the DEA, returned to Chicago with the semi-tractor/trailer loaded with 250 kilograms of cocaine. The DEA seized the semi-trailer, searched it, and discovered the cocaine. When Campos learned of the this, he called Perez to a meeting at Maximino's house. When Perez arrived, he was taken by Campos and another person down to the basement. The other man pulled out a gun and pointed it at Perez while Campos demanded to know what happened to the semi-trailer and where Rock lived. Campos threatened Perez that he would be killed if the semi-trailer was not found. Perez claimed he had nothing to do with the loss of the semi-trailer and agreed to search for it with Campos.
After the March 1 seizure, the use of semi-tractors/ trailers was stopped in favor of using passenger vehicles with hidden compartments, thus entering the second phase of the conspiracy. Like the semi-trailers, the passenger vehicles were loaded with cash in Chicago and with drugs in Texas. Campos met with Vasquez to discuss this new method of transportation. Beginning in June 2002, Vasquez made round trips between Chicago and Texas in passenger vehicles. He made a total of seven round trips, using a rental car for all but one. Campos indicated that the cars should be rented for one week in order to provide enough time to get the drugs from Texas to Chicago. He instructed Vasquez to rent a Lincoln Town Car or Mercury Grand Marquis because they had large frames in which to easily conceal money and drugs. When Vasquez used a rental car, Campos arranged for the dates for the rental and for someone to transport Vasquez to pick up the rental car at the airport. Shortly after Vasquez drove a rental car from the lot, he was met by a person identified by Campos to whom Vasquez turned over the car. The car was taken away and loaded with cash, hidden behind the dashboard. After that, which usually took one or two days, Campos notified Vasquez that the rental car was ready and where he could pick it up. Vasquez picked up the car and drove it, with the cash, to Texas.
Once Vasquez reached Texas, he called Campos, who in turn contacted Herrera. Then the rental car was picked up, the money removed, and the drugs were hidden inside. This process typically lasted several days. When it was completed, the car was returned to Vasquez who drove it, along with the drugs, back to Chicago. On the way, Vasquez was in telephone contact with Campos who wanted to ensure that Vasquez was not appre- hended at any checkpoint en route to Chicago. When Vasquez arrived in Chicago, he contacted Campos who had someone pick up the rental car so the drugs could be removed. After this process was complete, the rental car was returned to Vasquez who returned it to the airport car rental. Campos paid Vasquez $5,000 per trip.
On June 10, 2003, Campos arranged to have a car rented by Vasquez parked at a predetermined location. As with prior trips, Vasquez went to the location as instructed by Campos to pick up the car but was unable to find it. He called Campos and reported that he could not find the car. Campos contacted the persons who had parked the car to confirm the exact location. He did not know that the DEA had seized the car, which contained approximately $135,000 in cash, pursuant to a warrant. This seizure led to the end of the organization's use of passenger cars to transport drugs and money-the end of the second phase of the conspiracy.
Campos decided to return to the use of semi-tractors/ trailers to transport drugs from Texas to Chicago; thus began the third phase of the conspiracy. Campos searched for a driver, a semi-tractor/trailer, and a warehouse in which to unload the drugs in Chicago. With Vasquez's help, Campos made contact with Joseph Bleka, the lessor of a warehouse on 4800 S. Central Avenue, Chicago, Illinois. Vasquez knew Bleka from his involvement in a drug delivery Perez had made for the organization in 2002. Vasquez asked Bleka if they could use his warehouse again. Bleka agreed.
So, beginning in July 2003, the conspirators again transported drugs from Texas to Chicago using semi-tractors/trailers, unloading the drugs at Bleka's warehouse. Campos hired the individuals who transported the drugs from Texas to Chicago. He coordinated the loading of the drugs in Texas with Herrera and the arrival of the drugs in Chicago with Vasquez. Campos paid Bleka $5,000 for each shipment of drugs that was unloaded in his warehouse. On February 10, 2004, the DEA searched Bleka's warehouse, seizing 325 ...