Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 06-CR-930-2 & 06-CR-930-3-Rebecca R. Pallmeyer, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
Before RIPPLE, MANION, and TINDER, Circuit Judges.
Marcus Corson and Oscar Alvarez were charged with two conspiracies, one to rob a drug stash house and the other to sell what they planned to steal. This seems straightforward enough. But there's a twist. There never was any stash house to rob. Nor were there any drugs. And the two people who introduced Corson and Alvarez to the stash house plan never intended to rob anything. That's because one was a government agent and the other a confidential informant ("CI"). This fictitious stash house plot was concocted by law enforcement to entice all-too-eager gangsters to agree to do something illegal.
In the end, there was no robbery, and nobody testified that they saw the defendants with firearms. But the jury convicted on both counts.
Corson and Alvarez appeal their convictions. If judges sat in a policy-making role, perhaps we might have reason to wonder whether this scheme was the right use of law enforcement resources. But directing policy is not within our province. Instead, in this case, our duty is to assess whether the evidence was sufficient for a jury to convict. It's an uphill battle to overturn a jury verdict. Assessing credibility of witnesses and interpreting the evidence are tasks ordinarily left to the jury. After re-viewing the record we conclude that there was sufficient evidence for the jury to find guilt beyond a reasonable doubt. We affirm their convictions, and we also affirm Corson's sentence.
The Bureau of Alcohol, Tobacco and Firearms ("ATF") hatched their stash house sting operation in early November 2006. ATF agents met with the CI and asked whether he knew anyone who might be interested in robbing a drug stash house. The CI identified Marcus Corson and his brother Aaron. (Aaron Corson was also tried and convicted but he withdrew his appeal. To avoid confusion, we will hereafter refer to the Corson brothers by their first names only.) So the ATF instructed the CI to make contact. The CI called Marcus and told him about a "business opportunity." Marcus showed some interest and on November 8 told the CI to meet him at the home of the third defendant, Oscar Alvarez, that day.
The CI showed up to Alvarez's place wearing a body wire, a digital recording device that would capture their conversations. The jury would hear and read a transcription of all of what was said. The CI started to tell Marcus and Alvarez about the plan, describing how he worked security for a guy he met in prison named Loquito, or "Loqs," who worked for a Mexican drug organization. (Of course, there was no Mexican drug organization and "Loquito" was actually an undercover ATF agent.) Before the CI mentioned the robbery, though, Marcus and Alvarez jumped in and asked whether the CI was talking about a "gank" (meaning a heist). When the CI responded affirmatively, Alvarez asked, "How much you talkin'?" to which the CI responded "bricks" of cocaine (the coke, not money, was the target of the robbery). Marcus got excited and Alvarez asked the CI whether he was talking about "runnin and robbin' some niggas" and to "make it clear, the details."
The CI explained the operation: Loquito would not know the location of the stash house until just one hour before the drugs arrived; but once he knew the location, he would call the CI. Then the Corson-Alvarez crew could execute the robbery. Marcus and Alvarez probed the CI for details. Marcus asked if the stash house guards would be "strapped, too," meaning carrying firearms. The CI said they probably would be. But that didn't matter. Marcus and Alvarez said they were in. Marcus: "I'm down, bro. That ain't no thing. I'm down. Ain't a question." Alvarez: "We in it. We in it a hundred percent, bro." As for the guards, Marcus said he wouldn't hesitate to kill them. Marcus then told the CI that his brother Aaron would be involved too and that the three of them had done robberies in the past. They agreed to meet the next day.
During all this Marcus and Alvarez repeatedly expressed their concern-not over whether the plan was real, but whether the drugs would certainly be at the stash house: "if you send us in, the shit gotta be there, bro. He gotta know if it's there." Marcus repeated this ultimatum: "But the only thing is... you gotta make sure this shit's there." And so did Alvarez: "But, ya know what I'm sayin', if shit don't go right, nigga, that falls on you and him." The CI assured them the drugs would be there.
Marcus left but Alvarez stayed to meet Loquito (the undercover agent), who was waiting in a car nearby. Loquito explained how the Mexican drug operation and the stash houses worked and said they were looking at 20 to 25 kilos of coke being in the stash house. Loquito asked whether Alvarez and the Corsons were up to the task, and Alvarez repeatedly recommitted: "You got the crew. We got the crew"; "Everything sounds good.... it's gravy"; "Yeah. I'm in." Alvarez explained that he and the Corsons had done these kinds of robberies before and had no problem killing the guards in the stash house. If the guards had guns, no problem; they had their own. And Alvarez even debated how he'd like to execute the robbery: at first "with the intentions of quietness," but later saying it might be better to do it "like a police raid." But again, through all this, Alvarez reiterated the earlier concern about the drugs being at the stash house. The drugs had to be there. Loquito assured him they would be. So they agreed to meet the next day.
They didn't meet for a couple of weeks though. On November 20, Alvarez and both Corsons met with the CI and Loquito. These conversations were also recorded. Before they met, the CI told Alvarez and Marcus that Loquito was scared to enter their house. Alvarez responded: "Well, fuck that, man. If he on some scary shit, ain't no sense doin' it. Tell, tell him to come on." Marcus, too, expressed some frustration. Eventually, though, the defendants relented and met with Loquito outside in a van. Loquito explained the robbery job to everyone. He told them that the drug cartel used empty houses to stash drugs and that he would only know the location of one of those houses just hours before the drugs arrived. There were usually 15 to 20 kilos of co-caine. Loquito also said that the guards of the stash house would be armed. The defendants asked about what kinds of weapons the guards carried and Loquito responded that they would have 9mm handguns, or "li'l baby thumpers," as he called them. "Just handguns?" Alvarez responded. He and the Corsons weren't worried: "we got somethin' way bigger'n that."
All three repeatedly reconfirmed their commitment to the robbery. Marcus: "you got your squad." Aaron: "I'm ready, man." Loquito said he needed a "professional crew." They reiterated that they were experienced and that they would be the "final crew." Alvarez: "I assured you it straight, so it straight." Aaron: "I'm ready, man"; "Just you do your part. We're gonna do ours, bro." Marcus: "[Y]ou got your squad"; "Man, it's on, dog." Then, one more time, Loquito confirmed the participation of all three:
AARON: Who the fuck, who the fuck ain 't gonna m ove on some'in' for 15, 20 keys (U/I)
MARCUS: Ya' know? I'm sayin', bro.
AARON: (U/I) Tell you some'in', don't go lookin' nowhere else man. Signed, ...