Argued November 6, 2013
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:10-cr-00802-3 -- Matthew F. Kennelly, Judge.
For United States of America, Plaintiff - Appellee: Stephen Chahn Lee, Attorney, Office of The United States Attorney, Chicago, IL.
For Faustino Arrellano, Defendant - Appellant: John Matthew Gore, Attorney, Jones Day, Washington, DC.
Before WOOD, Chief Judge, and FLAUM and TINDER, Circuit Judges.
Tinder, Circuit Judge.
Faustino Arrellano was convicted of one count of conspiring to possess heroin and cocaine with intent to distribute, in violation of 21 U.S.C. § § 841(a)(1) and 846, and two counts of using a cell phone to facilitate that conspiracy, in violation of 21 U.S.C. § 843(b). At trial, the government introduced Arrellano's cell phone, as well as several wiretapped telephone conversations involving Arrellano's alleged co-conspirators. On appeal, Arrellano argues that his cell phone and those co-conspirator statements should have been suppressed and that the evidence was insufficient to support his convictions. However, the co-conspirator statements were properly admitted, any error in admitting Arrellano's cell phone was harmless, and the evidence was sufficient to support his convictions. Therefore, we affirm.
Our discussion of the facts is extensive because the sufficiency of the evidence at trial is at issue. In 2009, a joint task force consisting of the Chicago Police Department, the FBI, the DEA, and other federal agencies began investigating various suspected drug traffickers in the greater Chicago area. In early 2010, investigators learned that a man named Roberto Romero was distributing cocaine and heroin in the area. The FBI subsequently obtained a court-approved wiretap for Romero's phone and learned that his supplier was a man named Moises Villalobos.
During the summer of 2010, investigators turned their attention to Villalobos. The FBI secured a series of wiretaps for phones used by Villalobos, and members of the task force began conducting surveillance of Villalobos and his associates. This led to the seizure of some of the drugs that Villalobos supplied to Romero. In addition, during their surveillance, members of the task force frequently observed Villalobos driving a green Honda Accord and visiting two residences situated roughly a mile apart from each other on the northwest side of Chicago, one at 2826 North Long Avenue and the other at 2455 North McVicker Avenue.
On August 9, 2010, the FBI intercepted a call between Villalobos and an associate named Aoclaro. During that conversation, Villalobos told Aoclaro that " by day after tomorrow, a 12 is supposed to get here." On August 12, Villalobos spoke with Aoclaro again and said, " Look, because it's already here. We have got 12. There are 12 around here. We're just waiting for Ingeniero to come over so he can check the construction work for us." Based on these conversations, the FBI believed that Villalobos had received a 12-kilogram shipment of heroin.
On August 15, 2010, at 8:40 a.m., the FBI intercepted a call between Villalobos and Rosa Fernandez, who would later be charged as Arrellano's co-defendant in this case. To complete this call, Fernandez's phone utilized a cell tower covering the area of her residence in Kenosha, Wisconsin. The conversation was brief. After they greeted each other, Villalobos simply said, " It's ready," and Fernandez responded, " All right then, I will be there shortly."
About an hour later, at 9:38 a.m., the FBI intercepted a call between Villalobos and an associate named Klen. During that conversation, Klen asked Villalobos, " Will you be set with just one hand?" In response, Villalobos said, " [T]hrow in the two, we'll put some effort into it." Later, at 10:26 a.m., Villalobos spoke with Aoclaro and said, " Aside from the 12, they added another 10 on me." Based on these conversations, the FBI believed that Villalobos was about to receive a 10-kilogram shipment of heroin.
Shortly thereafter, at 10:55 a.m., Villalobos spoke with Klen again, and Klen explained that " the young guy ... can't find the house." Villalobos responded, " Tell him that on Diversey and Austin there's a Dunkin' Donuts. Have him park there and the guy will go there." At 11:07 a.m., Villalobos spoke with Klen once more, and Klen advised that his guy was wearing a red t-shirt.
Around the same time, FBI Special Agents David Ostrow and William Roecker met at the Dunkin' Donuts at the corner of Diversey and Austin in Chicago, where they spotted a Hispanic male wearing a red t-shirt and sitting in a black Nissan Sentra in the parking lot. To avoid letting on about the ongoing investigation, the agents approached the man with a ruse, telling him that they had received reports that there was someone in the area with a gun, and asking his permission to search his car. After the man consented, the agents found a black suitcase in the trunk
of the car, which contained approximately 10 kilograms of heroin.
At 11:41 a.m., the FBI intercepted another call between Villalobos and Fernandez. This time, Fernandez's phone utilized a cell tower covering the area of the McVicker residence, as well as the aforementioned Dunkin' Donuts. During this call, Villalobos complained that he had been calling the " young man," and " it seems the phone is not charged. He doesn't answer me anymore." Then, Villalobos said, " Look, ... from where the Dunkin' Donuts is upwards. Go around there and you will see him around there. Go around there. See if you see anything around there." Fernandez responded, " All right then. I'm on my way."
At 11:49 a.m., Villalobos called Fernandez again and asked whether she saw anything " over there at the coffee shop." Fernandez responded, " Nothing, ... just people drinking coffee." Villalobos then instructed her, " Go and check by the little house and see if you see anything. Knock at the young man's door, see what's going on." At 11:57 a.m., Fernandez called Villalobos back and said, " I don't see anything. It's quiet here." For both of these calls, Fernandez's phone utilized the same cell tower covering the area of the McVicker residence and the Dunkin' Donuts.
Up to this point, Arrellano's name had yet to come up in the investigation. However, on August 15, the day of the seizure at Dunkin' Donuts, Arrellano activated a new cell phone, which he registered in his name using the address 4836 West Barry Avenue, Chicago, Illinois. This was the same address Fernandez had used for her cell phone registration, though neither Arrellano nor Fernandez actually lived there. All of the calls Arrellano made or received on his new cell phone between 5:45 p.m. on August 15 and 11:53 p.m. on August 17 utilized a cell tower covering the area of Fernandez's residence in Kenosha, Wisconsin. Three of those calls involved another Villalobos associate known as Gau.
At 12:40 p.m. on August 17, ten minutes after one of Arrellano's conversations with Gau, Villalobos called Fernandez's phone and asked to speak to " the young man." In response, Fernandez put Arrellano on the phone. Villalobos then asked Arrellano, " What's going on, buddy? I have been calling you." Arrellano explained that he had a new number, to which Villalobos replied, " All right. Call me with the other one." A few minutes later, Arrellano called Villalobos from his new cell phone. During that conversation, Arrellano described the situation as " a little hot" and said, " It's not possible to work. Basically the only thing to do is to wait."
A few minutes after this conversation with Arrellano, Villalobos spoke with Gau, who said, " We been trying to locate you. My buddy is pretty spooked out. His hair is standing ... up." Villalobos responded, " Well, yes, cousin. I called him a little while ago. He said he's worried. On top of that, he's with a lady, a friend of ours. She's alone. It's good the buddy is keeping her company."
Later in the same conversation, Villalobos told Gau, " The thing is that, eh, one of our comrades around there, they took him to the hospital over there with ... 10 countrymen that were coming with him, and that's why we made a little space, cousin." Gau asked, " Oh, that young man, if he went to the hospital, he's going to stay there for a long while, right? He'll be admitted. That's almost cancer for life, right?" Villalobos responded, " Right now there are two possibilities. They may let them free or they may keep them inside, cousin. I believe right now there's only an ambulance around there. I think if there's only one ambulance, sometimes they keep the tools and they let them go, cousin. Right now since like, you know, the crisis
is tough, that's what the fuckers are ...