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United States v. Recendiz

March 3, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
GERARDO RECENDIZ, ARMANDONAVAR, AND MARCO THOMAS, DEFENDANTS-APPELLANTS.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 CR 1136-Charles R. Norgle, Judge.

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

ARGUED OCTOBER 20, 2008

Before BAUER, KANNE, and WILLIAMS, Circuit Judges.

On October 3, 2005, a jury convicted Armando Navar and Marco Thomas of a number of federal crimes related to their participation in a Chicago cocaine distribution network. The district court sentenced Navar and Thomas to 324 and 360 months in prison, respectively. On appeal, Navar challenges his conviction, arguing that the district court made several evidentiary and procedural errors and that his counsel was ineffective. Thomas joins only Navar's assertion that trial counsel improperly shifted the burden of proof during his opening statement, in violation of his Fifth Amendment right to due process. We find no error below and affirm both convictions.

Co-defendant Gerardo Recendiz pleaded guilty to multiple charges related to his participation in the same drug distribution network and was sentenced to 135 months in prison. Recendiz's attorney filed an Anders brief requesting permission to withdraw from representing Recendiz. We grant the motion to withdraw and dismiss Recendiz's appeal.

I. BACKGROUND

Armando Navar and Marco Thomas were members of a drug trafficking organization that smuggled substantial quantities of cocaine from Mexico into the United States and distributed it on the streets of Chicago. The organization's leader was Saul Saucedo, who resides in Mexico and oversees his organization from afar.

A. The Cast of Characters

Armando Navar is originally from Mexico, and he is married to Saul Saucedo's sister, Lorena. Before coming to the United States, Navar worked as a physician and was known as "the Doctor" within the Saucedo organization.

During the relevant time period, Navar worked for Saucedo as a high-level operative in Chicago. In this capacity, Navar aided in the delivery of multi-kilogram quantities of cocaine from Mexico, where they were stored in stash houses around the city. Navar assisted in distributing large amounts of the cocaine to brokers for the organization, who sold it to wholesale dealers, who in turn distributed the drugs to their street-level, paying customers. Couriers delivered the proceeds back to higher-ranking members of the organization, who allocated the profits and eventually smuggled the remainder back to Saucedo in Mexico. The drug operation was vast, involved hundreds of kilograms of cocaine, and generated millions of dollars.

One broker for the Saucedo organization was a man named Jesus Herrera. Navar first met Herrera in 1997, when Herrera began dating Navar's sister-in-law-Saul Saucedo's younger sister-Cynthia. Navar disapproved of the relationship and distrusted Herrera because he was from a disfavored town in Mexico and was older than Cynthia. Navar confronted Herrera on one occasion and barred Cynthia from seeing him, largely out of respect for her father, who had entrusted her to Navar's care. Following his intervention, Navar did not communicate or interact with Herrera for some time.

Years later, Herrera began purchasing cocaine from the Saucedo organization. Herrera initially dealt with an operative named Gabe, but Navar assumed this business following Gabe's arrest. From late 2002 until mid-September 2003, Navar sold cocaine to Herrera approximately two to three times per month, in average quantities of ten to fifteen kilograms. Herrera owned a furniture store on the west side of Chicago, but he attempted to keep his drug business separate and leased a nearby warehouse to conceal cocaine.

Concerned for his reputation, business, and safety, Herrera enlisted Ahmed "Eddie" Tmiri as his primary assistant in carrying out the drug transactions. Tmiri had worked for Herrera in the furniture store for six years before joining the drug operation. Typically, after Herrera arranged a sale, Tmiri picked up the money and delivered the cocaine to the buyer, allowing Herrera to distance himself from the criminal activity. Because of Tmiri's assistance, Herrera split with him the profits earned from each transaction.

Herrera sold cocaine to many different dealers, one of whom was Navar's co-defendant Marco Thomas. Herrera sold cocaine to Thomas from the spring of 2003 until their last transaction on September 3, 2003. The transactions occurred approximately two or three times per month, each in an amount of approximately ten to fifteen kilograms of cocaine.

B. The Drug Busts

Near the beginning of 2003, the Drug Enforcement Administration began investigating the Saucedo organization after the DEA's Colorado Springs office intercepted phone conversations of a known money carrier, who revealed that he was making a trip to Chicago to pick up anywhere from $1 million to $2 million. The DEA's Chicago office took over the investigation in mid-2003.

During the course of the investigation, the DEA obtained permission to wiretap multiple telephone numbers associated with members of the Saucedo organization. Among these telephone numbers was a prepaid cellular phone used by Jesus Herrera. Herrera testified that he communicated with Navar and Thomas primarily via prepaid phones referred to as "throwaways," which allowed users to avoid providing identifying information associated with a regular cellular phone account and, at least theoretically, to avoid wiretaps.

Herrera's efforts to evade a wiretap were unsuccessful. Between August 1 and September 15, 2003, the DEA recorded approximately 530 telephone calls on Herrera's number. Of these, the government introduced as evidence at trial sixty-five conversations related to drug transactions: thirty-nine calls between Herrera and Navar, and twenty-six calls between Herrera and Thomas. The conversations revealed the details of various drug deals, most often communicated using code language. Herrera explained that they avoided the word cocaine but discussed quantities, the price per kilogram, their typical terms or "standing orders," and meeting places for delivering the drugs.

Based upon these conversations and additional surveil-lance, the DEA learned of an upcoming drug transaction involving Navar and Thomas. On September 2, 2003, Navar informed Herrera that cocaine was available, and Herrera reserved ten kilograms. Herrera called Thomas to inform him of the cocaine and coordinate an exchange for the next day. On September 3, Herrera confirmed the transaction with both Thomas and Navar. Just before noon, Thomas called Herrera's courier, Tmiri, and the two arranged a meeting at a restaurant to exchange the money. DEA agents observed the exchange of a duffel bag and followed both Thomas and Tmiri when they departed. Tmiri proceeded to a White Hen Pantry, where he collected a package from a white minivan carrying two Hispanic men, and the two vehicles quickly separated and left. The minivan proceeded to what was later discovered to be a stash house; agents followed Tmiri's car to an apartment on the west side of Chicago. At that point, Thomas reappeared, parked beside Tmiri, and removed a box from Tmiri's trunk. Tmiri testified that Thomas took the box into the apartment building, which belonged to Thomas's sister, and then both men drove away.

Following this exchange, law enforcement stopped both Tmiri and Thomas. In Thomas's Cadillac Escalade, agents discovered a loaded semiautomatic handgun, two plastic bags containing cocaine, and approximately $23,500 in cash. Investigators later learned that Thomas had repeatedly deposited proceeds into four different bank accounts in amounts just below $10,000, to avoid bank disclosure rules. An IRS Special Agent testified at trial that agents also discovered $498,500 cash in Thomas's safe deposit box, $87,000 in three separate hiding places in Thomas's home, a .357 Magnum, a .9mm handgun, a money-counting machine, and documents that appeared to be drug ledgers.

The DEA continued to monitor phone calls between Navar and Herrera. The next day, September 4, Herrera informed Navar that they "had a problem with the dogs," which he explained at trial meant the police. Herrera suggested that they move their drugs to another location. Law enforcement followed the trail, and on September 15, agents stopped a white van leaving the new location with 21 kilograms of cocaine. A search of the stash house revealed over 500 kilograms of cocaine hidden in the floorboards and the attic, as well as weapons, equipment for pressing and packaging cocaine, and a drug ledger. The DEA arrested Herrera, who provided information about "the Doctor" that led to Navar's identification and arrest. Herrera also identified Navar's voice on a number of the recorded calls between him and Navar.

On April 1, 2004, a grand jury indicted eleven individuals who were involved in the conspiracy to distribute drugs for the Saucedo organization. The indictment charged Armando Navar with conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, distribution of more than five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1), and three counts of using a communication facility during a felony in violation of 21 U.S.C. § 843(b). The indictment charged Thomas with the same conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and a number of other related counts.

On September 20, 2005, a jury trial began in the United States District Court for the Northern District of Illinois. Prior to trial, Herrera and Tmiri accepted plea agreements and agreed to testify against Navar and Thomas. The government also called law enforcement agents involved in the investigation. On October 3, 2005, a jury found both defendants guilty of each count of the indictment. On May 9, 2006, the district court sentenced Navar to 324 months' confinement; on June 16, 2006, Thomas received 360 months. Both filed timely notices of appeal, and we consolidated their appeals.

II. ANALYSIS OF THE CONSOLIDATED APPEALS OF NAVAR AND THOMAS

In his brief, Navar presents no fewer than ten issues for our review. Among them are a variety of alleged evidentiary and constitutional errors, as well as an ineffective assistance of counsel claim based upon his trial attorney's failure to address some of these alleged errors. We will address the bulk of Navar's arguments. Thomas joins only Navar's first argument regarding counsel's remarks during his opening statement. Because Navar bases his ineffective assistance of counsel claim on three issues similar to those he challenges substantively, we will address the merits of his individual arguments first, then turn to the ineffective assistance claim.

A. Defense Counsel's Comments During His Opening Statement

Navar's first argument, which Thomas joins, is that Navar's counsel made certain comments during his opening statement that improperly shifted the burden of proof, thereby violating the defendants' Fifth Amendment right to due process. The following exchanges regarding the burden of proof occurred in front of the jury at trial.

During her opening statement, the prosecutor correctly informed the jury that the government must prove the charges beyond a reasonable doubt, which she explained "is the standard of proof in . . . every criminal case in the city of Chicago." Following the government's statement, Navar's counsel gave his opening statement, in which he made the following remarks to the jury regarding the burden of proof:

Members of the jury, Mr. Hyman and I, Larry and I, intend to prove to you-that's right, we who have no burden, it's true. As you heard my adversary say, Ms. Noller and his Honor will tell you again, instruct you later . . . that the government has the burden of proof beyond a reasonable doubt in every criminal case. But in this case, members of the jury, I will respectfully tell you now that we appreciate those advantages, but we don't want those advantages. He is presumed innocent, that's true, but we don't want any advantage at all because we will confidently prove to you . . . by the end of this case that Armando Navar is an innocent person and being set up and being framed by a person who has an absolute visceral hate for Armando Navar. . . . .

I'm going to prove to you that Armando Navar meddled in a relationship between Herrera and Armando Navar's sister-in-law, because he at some point, many times, told his sister-in-law that ...


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