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United States of America v. Alfonso Torres-Chavez

December 13, 2011

UNITED STATES OF AMERICA PLAINTIFF,
v.
ALFONSO TORRES-CHAVEZ, DEFENDANT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

MEMORANDUM OPINION AND ORDER

On September 29, 2011, following a four day trial, the jury returned a verdict of guilty as to Defendant Alfonso Torres-Chavez on each of five narcotics-related counts charged in the Superseding Indictment. Presently before the Court is Defendant's Motion for Judgment of Acquittal, Arrest of Judgment or New Trial. (R. 89.) For the reasons set forth below, the Court denies Defendant's motion.

BACKGROUND

A federal grand jury returned a Superseding Indictment, on September 14, 2010, charging Defendant, along with co-defendant Bartolo Lucatero and others, with (1) conspiracy to possess with the intent to distribute and to distribute controlled substances, namely, mixtures containing cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2 ("Count One"); (2) possession with intent to distribute a controlled substance, namely, mixtures containing cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 ("Count Three"); and (3) using a communication facility, namely, a cellular telephone, in facilitating the conspiracy to possess with the intent to distribute and to distribute cocaine, in violation of 21 U.S.C. § 843(b) ("Counts Five, Six, and Seven"). (See R. 30, Super. Indict. at 1-5, 7, 9-11; R. 74, Parties' Agreed Stmnt of the Case.)

At his arraignment on October 12, 2010, Defendant pleaded not guilty to each of the counts charged in the Superseding Indictment. (R. 40.) Lucatero pleaded guilty on October 15, 2010 pursuant to a written plea agreement in which he agreed to cooperate with the government.

(R. 43.) The case against Defendant proceeded to a jury trial.

I. Trial Proceedings

The trial began with jury selection on September 26, 2011. During voir dire, the Court advised the potential jurors that "[t]he defendant has an absolute right not to testify in the case, and no inference or suggestion of guilt c[an] be drawn from th[at] fact if he chooses not to testify in the case. That is his constitutional right." The Court asked if "that constitutional right" concerned any of the potential jurors. None of the potential jurors responded in the affirmative.

The government presented numerous witnesses at trial, including Drug Enforcement Administration ("DEA") Special Agent Charles Baumgartner, Interpreter Catalina Maria Johnson, linguist Stephanie Skelskey, inmate Jorge Ayala-German, cooperator Bartolo Lucatero, DEA Special Agent Kirk Seeley, and DEA Special Agent Wilfred Taylor. During his testimony, Lucerdo testified that Defendant obtained five kilograms of cocaine from a drug trafficking organization based in Michoacan, Mexico, known as "La Familia Michoacana" or "La Familia." The drug organization "fronted" the five kilograms of cocaine to Lucatero and Defendant, who intended to distribute the cocaine to an individual known as "Lito." After a series of phone calls and meetings, Lucatero obtained the five kilograms of cocaine from the associate of an individual known as Jose Gonzalez-Zavala, the organization's distributor in Chicago who also went by the alias "Panda." Lucetero then drove to an apartment building in Chicago where Defendant had an apartment. Defendant's roommate brought Lucatero a key to the apartment, and they stored the five kilograms of cocaine in Defendant's closet in the apartment. The next day, Defendant paid Lucatero $700 for delivering the cocaine to his apartment, and told Lucatero that the five kilograms of cocaine had been sold.

Lucatero further testified that Defendant subsequently informed him that "Lito" would contact Lucatero in order to deliver money from the sale of the five kilograms of cocaine. Lucatero subsequently received $74,000 from "Lito." Defendant instructed Lucatero to set aside approximately $1,500 from these drug proceeds. On May 28, 2009, Lucatero met with several associates of Gonzalez-Zavala and gave them the $72,500 in cash drug proceeds. He then called Gonzalez-Zavala and confirmed that he had delivered the money.

In addition to the testimony of Lucatero, the government presented the testimony of law enforcement agents who witnessed Lucatero meet with members of the La Familia Michoacana organization for the purpose of obtaining cocaine, and photographs of property seized during a search of the organization's stash houses, including over $1.3 million and 54 kilograms of cocaine, from which the 5 kilograms of cocaine that were delivered to Lucatero for Defendant originated.

The government also introduced approximately two dozen recorded conversations intercepted from a Title III wiretap on various telephones utilized in the conspiracy. These intercepted phone calls involved Defendant and others discussing a May 2009 cocaine transaction, and specifically recorded various co-conspirators discussing the distribution of kilogram quantities of cocaine and the payment for these drugs. (See, e.g., Call No. 119, 5/27/09 at 9:10 a.m. (recording of cell phone conversation in which Defendant informs Panda that Defendant has "a black shirt on," so that Panda or his associates would recognize Defendant and complete a drug-related transaction).)

Defendant exercised his constitutional right not to testify at trial, and the defense did call any witnesses to testify. On September 28, 2011, before closing arguments, the Court "reminde[d]" the jury that "the government has the burden of proof. The defendant does not have to put on any evidence." The parties gave their closing arguments, and the Court thereafter charged the jury. In its instructions, the Court again instructed the jury that "[t]he defendant has an absolute right not to testify. The fact that the defendant did not testify should not be considered by you in any way in arriving at your verdict." (R. 81, No. 12.) On September 29, 2011, following deliberations, the jury returned a verdict of guilty as to Defendant on all counts charged in the Superseding Indictment.

II. Subsequent Jury Service

After the jury returned its verdict and the Court excused the jurors from this case, the jurors returned to the jury pool for their second week of jury service in accordance with the Local Rules and practices of the Northern District of Illinois. See, e.g., Local Rule 47.1(a); "Jury Information," N.D. Ill., available at http://www.ilnd.uscourts.gov/home/JuryInfo.aspx (Dec. 12, 2011). Several of the jurors were questioned as potential jurors in subsequent and unrelated criminal trials. The Court summarizes the relevant portions of the voir dire of three jurors -- Jurors A, B, and C -- from these unrelated trials.

A. Juror A

On October 3, 2011, following his jury service in this case, Juror A participated in jury selection in another matter, United States v. Gore, No. 09 CR 248 (Gottschall, J.) The following colloquy took place during voir dire:

THE COURT: [Y]ou indicated that you would have some problems if the defendant did not testify in this case, am I right about that?

JUROR A: Yes.

THE COURT: . . . . [I]f you're in this courtroom situation and if you are instructed the government has the burden, the defendant has the right not to testify, would you be able to follow that instruction? JUROR A: I would try, but it's hard because the last case we tried last week it was like the same thing. He didn't testify. Me, I probably want to hear from the other side.

THE COURT: Did the Judge instruct you that you shouldn't consider whether or not he testified?

JUROR A: I mean, yeah, but --

THE COURT: . . . . Do you think you could be fair and follow the law . . . ? JUROR A: I don't know. From the last trial I just don't understand nobody not testifying. That's just me.

THE COURT: Well, did the jury evaluate the government's evidence in that case? JUROR A: I mean, yeah, they did, but it was just me. I don't know about anybody else.

THE COURT: [W]ere you able to decide whether or not the government had carried its burden of proof?

JUROR A: Yeah, a little bit. A little. But I still had the doubt as soon as I heard the case knowing he was not defending himself. I still had the little doubt in my head that he probably did it.

THE COURT: So apart from feeling like maybe you didn't hear both sides, do you feel that the trial was unfair?

JUROR A: Not really.

THE COURT: Do you understand that [the defendant has a right to not testify and that exercise of that right cannot be used against him]?

JUROR A: I understand it, but I still -- I felt -- I still think I have an opinion about the situation too.

THE COURT: . . . . If you can't follow the law, you should not be on the jury. If you can follow the law, you should be on the jury. It's that easy. JUROR A: I probably wouldn't, being honest.

(R. 91, Ex. 3, United States v. Gore, No. 09 CR 248-1, Trial Tr.1B at 2-6.) The trial court thereafter excused Juror A for cause. (Id. at 6.)

B. Juror B

Juror B also participated in jury selection in United States v. Gore. After a preliminary colloquy, the following exchange took place:

COUNSEL: [Juror B] indicated I think she might have difficulty with a defendant who didn't testify.

JUROR B: I did raise my hand for that, and I served last week and I didn't raise my hand for that question last week. After my experience last week, I'm sorry, but I couldn't help it, but that entered into my thought process when I was trying to reach a verdict, that he did not testify. And I felt that if he would have said I wasn't there, I have an alibi, I would have maybe believed him more.

THE COURT: . . . . So I guess the question is if that is what you're instructed, and that will be what you're instructed, can you follow that instruction?

JUROR B: Well, I can say that I will try. But if you want me to be honest, I was surprised about how that did affect me, how I felt after the last trial.

THE COURT: And I need you -- I need you to be able to commit that you can follow [my instructions the ...


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