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United States v. Bermea-Boone

April 23, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
FRANCISCO J. BERMEA-BOONE, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:04-cr-00672-2-Harry D. Leinenweber, Judge.

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

ARGUED FEBRUARY 26, 2009

Before BAUER, KANNE and SYKES, Circuit Judges.

Francisco Javier Bermea-Boone was convicted of conspiring to possess with intent to distribute and to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846; and attempting to possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court sentenced him to 204 months' imprisonment. On appeal, Bermea-Boone challenges his conviction and sentence, claiming that the district court erred by: (1) denying his motion for a mistrial after the jury heard allegedly prejudicial hearsay comments; and (2) applying a two-level sentence enhancement for obstruction of justice. For the following reasons, we affirm.

I. BACKGROUND

In July 2004, Bermea-Boone arranged for a large quantity of cocaine to be driven to Chicago by truck driver Juan Garcia. On July 25, 2004, Garcia was traveling on Interstate 44 in Missouri en route to his destination when he encountered a series of signs that read, "checkpoint ahead" and "drug dogs in use." Phelps County Deputy Sheriff David Rightnowar observed Garcia's truck exit the interstate after passing these signs. As Garcia reached the exit ramp, he ran a stop sign, turned the truck around, and merged back onto the interstate traveling in the opposite direction. Garcia's curious actions and traffic violation prompted Rightnowar to stop the vehicle. Following a brief conversation, Garcia consented to the search of his truck. Aided by the use of a drug-detecting dog, Rightnowar and another officer discovered fifty-six bundles of cocaine under the truck's sleeper bunk. After being placed under arrest and advised of his rights, Garcia agreed to cooperate with the officers in a controlled delivery of the cocaine.

The following day, under the supervision of officers, Garcia placed a recorded call to Bermea-Boone and ar-ranged to deliver the cocaine near a Burger King restaurant off Interstate 57 in Monee, Illinois. During the call, the men made several references to "the ladies." Later, at trial, Robert Coleman, a law enforcement expert in narcotics trafficking, explained how cocaine dealers commonly use words like "ladies" to describe cocaine in order to avoid detection.

Before Garcia departed, officers fitted him with a body recording apparatus known as a "Kel" device and replaced the seized cocaine with "sham" cocaine. By early that evening, Garcia and Bermea-Boone had arrived at the Burger King parking lot. Unbeknownst to Bermea-Boone, officers were also in attendance, positioned to monitor the planned transaction.

Bermea-Boone was accompanied by three other men; they arrived in two cars: a green Dodge and a grey Nissan. Detective Richard J. Sperando saw Bermea-Boone exit the Dodge with a man later identified as Orlando Martinez Navarro. The men met Garcia in the parking lot and they entered the restaurant together. Officers then observed a man later identified as Francisco Morales-Cabrera get out of the Nissan and enter the Burger King; another man, later identified as Abel Gutierrez-Jiminez, remained in the car.

Inside the restaurant, Bermea-Boone told Garcia that someone would follow Garcia to the truck to make the transfer of the bundles of cocaine. Moments later, Garcia and Morales-Cabrera left the restaurant together. Garcia walked to his truck and stood by the passenger door. After Morales-Cabrera got in the Nissan, Gutierrez-Jiminez drove the car closer to the passenger side of the truck. There, Garcia handed Gutierrez-Jiminez three large bags containing the "sham" cocaine, which Gutierrez-Jiminez began putting inside the car's trunk. As he did, the officers approached and arrested all five men.

At trial, a Verizon Wireless representative testified that between July 24 and July 26, 2004, seventeen tele-phone calls took place between the cellular numbers of Bermea-Boone and Garcia. A Drug Enforcement Agent (DEA) was called to testify regarding his role in supervising telephone calls sent and received by Garcia. Bermea-Boone also testified at trial. According to his version of events, he was driving to Chicago with Martinez Navarro and Garcia to purchase pickup trucks for a new business.

The jury found Bermea-Boone guilty, and the district court sentenced him to 204 months' imprisonment, which included a two-level sentence enhancement for obstruction of justice.

II. DISCUSSION

Bermea-Boone makes two arguments on appeal: (1) that the district court erred in denying his motion for a mistrial after the jury was prejudiced by improper hearsay comments; and (2) that the district court erred in finding that Bermea-Boone obstructed justice by providing perjured testimony, which ...


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