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United States of America v. Fernando King

December 3, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
FERNANDO KING, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:06-cr-00904-1-David H. Coar, Judge.

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

ARGUED SEPTEMBER 9, 2010

Before WOOD, EVANS, and TINDER,Circuit Judges.

Fernando King, a high-ranking member (his title was "Supreme Inca") of the Latin Kings street gang, was charged with conspiracy to possess with intent to distribute in excess of five kilograms of cocaine (count one) and attempted possession with intent to distribute 500 grams or more of cocaine (count two), in violation of 21 U.S.C. § 846. The government's theory of the case was that King and Augustin Zambrano, an even higher-ranking member (a "Corona") of the Latin Kings, agreed to accept money and drugs from a lower-ranking Latin King who wanted "protection" for his cocaine business. The fly in the ointment was that the Latin King seeking protection, Jesse Guajardo, was secretly working as an informant for the government. After a week-long trial, a jury convicted King on both counts. He was subsequently sentenced to a term of 240 months.

King appeals, challenging several of the district judge's rulings along the way. Specifically, he argues that the judge erred in denying his motion to suppress a "sham kilogram of cocaine" seized from King and Zambrano's restaurant the day after Guajardo delivered it to King. King also challenges the judge's decision to admit gang-related evidence, his refusal to give a jury instruction on entrapment, and his failure to follow up on a jury note that expressed safety concerns. Lastly, King contends that the evidence was insufficient to support his conspiracy conviction.

In October 2006, Guajardo-who agreed to cooperate with the Bureau of Alcohol, Tobacco, and Firearms (ATF) after being arrested for drug trafficking-had a conversation with King during which Guajardo suggested a "business proposition." Guajardo told King that he (Guajardo) wanted "security . . . [l]ike a little insurance policy," meaning protection from the Latin Kings for his distribution of cocaine to prevent him from being robbed or burned by any other member of the gang. King responded that he would "talk to Carnel tomorrow. . . . So somewhere down the line if I'm doing something and he don't feel like he's left out. . . . And he feels like he didn't know nothing, you know. He don't like that." According to Guajardo, "Carnel" meant Zambrano, also known as "Viejo." When Guajardo proposed that he talk to Zambrano himself, King replied, "Yeah, no, we don't do it that way. I'll sit down with the Viejo and I'll get back with you."

In November, Guajardo had another conversation with King about the insurance arrangement. Guajardo reminded King that he was going to "talk to the Viejo" first. The men then discussed the issue of payment, and King said that Zambrano wanted it "up front." (According to King, Zambrano was having financial problems and was unable to raise money from his "immigration" business-that is, the selling of fake identification cards to illegal aliens.) King asked for "one off the top for me and the Viejo," meaning a kilo of cocaine. When Guajardo sought to clarify whether he should pay with money or drugs, King replied that it did not matter, but if Guajardo paid with cocaine, King "give[s] it to somebody and they move that shit." King then promised, "I'm going to put my word behind it and the Viejo supports me you know what I'm saying. Anything I'm going to agree to the Viejo going to be right with it, you know." King also told Guajardo that another Latin King, Danny Aguilar, also known as "Biggies," had the same sort of drug-trafficking protection arrangement that Guajardo was seeking.

A few days later, Guajardo told King that he had received 10 kilos of cocaine and would be receiving more soon. Regarding the insurance on the 10 kilos, King said, "I told you what we [Zambrano and King] want," which was a kilo of cocaine up front. Guajardo responded that he would lose money on that deal and proposed a $500 payment per kilo of cocaine. King said that, if he received cocaine from Guajardo, he would "sell it real quick for me and Carnal [sic]." More specifically, he would have one of his "boys" sell the cocaine on King's behalf. Three days after that, Guajardo paid King $2,000 (it was supposed to be $5,000, but the ATF only gave Guajardo $2,000) and promised that he would make an additional payment of a kilo of cocaine soon, which would cover the insurance on the kilos of cocaine that he was about to receive.

On December 4, Guajardo went to a taqueria (a small taco restaurant) owned by King and Zambrano to deliver the kilo of cocaine, which, unbeknownst to King, was a sham. King and Zambrano were both present, but Zambrano was in a different part of the restaurant when the exchange took place. Upon receiving the kilo from Guajardo, King hid it in piping above a refrigerator in the back of the restaurant. Guajardo then had a conversation with Zambrano about Aguilar, who, to repeat, also had an insurance arrangement with King and Zambrano. Guajardo was concerned because he was late on a payment to Aguilar for cocaine and did not want to pay any "taxes." Zambrano replied that he had called "Biggies" and told him to call Guajardo. King offered to take the money on Aguilar's behalf, but Guajardo did not have it with him.

The next day, King was arrested. Pursuant to a search warrant, officers recovered gang literature, a Latin King constitution and manifesto, and other gang-related materials from his home. According to the constitution, a "Corona" is the highest-ranking officer of the Latin King nation. Guajardo identified Zambrano as one of the three "Coronas" (he was the only one not in prison) and King as the "Supreme Inca," a position created by Zambrano. The constitution forbids the sale of heroin but not cocaine. It also prohibits one gang member from accumulating debt to another member and provides procedures for settling grievances between members.

That same day, at about 9:00 a.m., ATF agent Ron Zitek and two Chicago police officers arrived at the taqueria, which was not scheduled to open for business until 11:00 a.m. The men wore plainclothes, bulletproof vests, and badges. After about 45 minutes, a cook named Antonio Cabrera-Lopez arrived and opened the door. The officers followed him inside. An alarm was activated, and Cabrera-Lopez used a code to disable it. Zitek then attempted to talk to Cabrera-Lopez but discovered that he could not speak English very well. So Zitek summoned a Spanish-speaking agent, Carl Jorgensen. While they waited for Jorgensen, the officers stayed in the front customer area of the restaurant.

Jorgensen and another Chicago police officer arrived and spoke to Cabrera-Lopez. According to Jorgensen, Cabrera-Lopez said that he was not the owner, just the cook, but he orally consented to a search of the premises.

He did not want to sign a consent form, however, because it was written in English. (Cabrera-Lopez's testimony was conflicting: on cross-examination, he said that he consented but later reversed himself.) Agent Zitek then searched the restaurant and recovered the sham kilo of cocaine in the spot where King had hidden it. At no time did Cabrera-Lopez tell the agents to stop their search or to leave. According to Cabrera-Lopez, the encounter was "polite." *fn1 suppress the sham kilo seized from the taqueria. The district judge framed the issues as whether Cabrera-Lopez had authority to consent to the search and whether his consent was voluntary. Regarding the first issue, the judge found that, because King gave Cabrera-Lopez the keys to the restaurant and full control over the premises (including the code to deactivate the alarm), King assumed the risk that Cabrera-Lopez might permit others to enter while King was absent. Regarding the second issue, the judge found that Cabrera-Lopez's age and employment responsibility suggested that he could understand the situation, and that there was no evidence of coercion. The judge also specifically found that Cabrera-Lopez consented to the search. Concluding that Cabrera-Lopez had apparent authority and gave vol-

Shortly after his indictment, King brought a motion to untary consent, the judge denied ...


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