United States v. Viezca, Macarrio ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3710
United States of America,
Plaintiff-Appellee,
v.
Macario Viezca,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 671--Blanche M. Manning, Judge.
Argued June 8, 2001--Decided September 7, 2001
Before Bauer, Easterbrook, and Kanne,
Circuit Judges.
Kanne, Circuit Judge. Macario Viezca was
convicted by a jury of conspiring to
possess, with the intent to distribute,
cocaine. He now appeals, alleging that:
(1) the government presented insufficient
evidence to support his conviction; (2)
the district court improperly failed to
provide the jury with a Sears
instruction; and (3) the district court
erred by denying his motion for a new
trial based upon juror bias. Because we
find no reversible error among these
claims, we affirm Viezca’s conviction.
I. History
On November 5, 1996, Terry Albrecht, a
convicted felon who was cooperating with
the Federal Bureau of Investigation,
contacted Viezca to set up a meeting.
Albrecht and Viezca had met in 1995
through a common acquaintance, Yolanda
Estrada. Viezca agreed to meet with
Albrecht at a local restaurant. At the
meeting, Albrecht told Viezca that his
nephews were interested in selling drugs.
Viezca asked Albrecht what he was looking
for, and Albrecht indicated he was
interested in purchasing an ounce of
cocaine. Viezca responded to this by
telling Albrecht that he would set him up
with his brother, Ronald Mendoza. Viezca
also told Albrecht that he did not "do
shit right now," suggesting that he was
not currently dealing drugs, but he
reiterated that he would "hook" Albrecht
up with his brother. Viezca then used
Albrecht’s cellular telephone to call his
brother. While waiting for his brother to
return his call, Viezca confirmed that
Albrecht was interested in purchasing an
ounce of cocaine. Albrecht agreed and
indicated that he was also interested in
becoming a regular customer of Viezca’s.
Viezca eventually spoke with his brother
and explained by way of a series of
previously established code words in
Spanish that Albrecht was interested in
buying an ounce of cocaine. He also told
his brother to come to the restaurant to
talk with Albrecht, that Albrecht wanted
to make a purchase that day, and that he
was interested in becoming a regular
customer. After this conversation, Viezca
and Albrecht discussed how they would
finalize the purchase and they agreed
that Albrecht would call Viezca later
that day. Viezca then left the
restaurant, and Albrecht waited for
Mendoza to arrive.
Mendoza arrived at the restaurant later
that evening. He approached Albrecht and
stated that "Gallo," Viezca’s nickname,
told him to come to the restaurant.
Albrecht indicated that he was the man
Mendoza was looking for and the two men
then began to discuss the specifics of
the drug purchase. Mendoza inquired as to
the quantity Albrecht wanted to purchase,
and Albrecht indicated that he wanted to
purchase an ounce of cocaine. Mendoza
explained that he only had 1/16 of an
ounce of cocaine on his person because he
believed that the Spanish word his
brother had communicated to him,
"camisa," was code for this amount of co
caine. During this discussion, Viezca
called Albrecht on his cellular telephone
and Albrecht let him speak with Mendoza.
After Mendoza finished his conversation
with Viezca, Albrecht asked him whether
Viezca was going to return to the
restaurant. Mendoza responded that he was
not, "just as long as we’re straight."
Albrecht then inquired as to how much an
ounce of cocaine would cost. Mendoza
explained that although he usually
charged "nine" (nine hundred dollars),
"since it’s for my brother I’d go eight-
fifty." Mendoza told Albrecht that he
would leave the restaurant for a period
of time but that he would return.
Mendoza later returned to the restaurant
in a pick-up truck. Albrecht got into the
truck and they drove around the
surrounding neighborhood. Mendoza
produced a plastic bag containing 28.1
grams of cocaine, which he gave to
Albrecht in exchange for the agreed upon
amount of money. Mendoza then dropped
Albrecht off at the restaurant.
In February of 1997, Albrecht contacted
Viezca by attending a party being held
for Viezca’s son at a neighborhood
establishment. Although the two men
talked at the party, no discussion
pertaining to drugs occurred at that
time. Albrecht did, however, indicate
that he would call Viezca sometime in the
near future. Several days later, Albrecht
tried to contact Viezca by using the
pager number Viezca had given to him.
After several unsuccessful attempts,
Albrecht contacted Mendoza, telling him
that he had been trying to get in touch
with Viezca "to get another camisa."
Mendoza informed Albrecht that Viezca had
changed his pager number. Mendoza gave
Albrecht new contact information for
Viezca and Albrecht gave Mendoza his
telephone number. Mendoza indicated that
he would give Albrecht’s number to his
brother.
The next day, Albrecht paged Viezca and
Viezca returned his page. Albrecht
expressed his interest in obtaining
another "camisa." Viezca told Albrecht to
contact him the following day. Albrecht
did not contact Viezca the next day or
immediately thereafter because federal
agents took possession of the cellular
telephone Albrecht had been using for
approximately three weeks. Albrecht did
contact Viezca on March 6, however, and
Viezca told Albrecht that he had been
trying to contact Albrecht, but that no
one was answering his telephone. Viezca
asked Albrecht if he was interested in
stopping by to see Viezca that night,
informing Albrecht that he would be at a
local club. Albrecht indicated that he
would try to meet him, but that if he
could not make it that night, that he
would meet with him the next evening.
Viezca made sure that Albrecht wanted to
"talk, right?" Albrecht agreed, and
Viezca told him to page him. Albrecht did
not meet or call Viezca that evening.
The next evening Albrecht paged Viezca.
Viezca returned the page, wondering where
Albrecht had been the previous night and
indicating that he had been expecting
Albrecht to meet him. Albrecht provided
several excuses and then asked Viezca if
he was free to meet that night.
Viezcaexplained that he was not really
free, but he confirmed that Albrecht was
interested in setting up another cocaine
purchase. Viezca told Albrecht to call
Mendoza and gave him Mendoza’s number.
Viezca also agreed to call Mendoza to
make the purchase easier. Albrecht tried
unsuccessfully to contact Mendoza and
thereafter called Viezca asking him to
let Mendoza know that he was trying to
reach him. Viezca agreed to call his
brother right away and give him
Albrecht’s telephone number. After he had
not heard from Mendoza for a period of
time that evening, Albrecht again paged
and subsequently spoke with Viezca.
Viezca told Albrecht that he would speak
with his brother and that Albrecht should
wait for Mendoza’s phone call. Shortly
after Albrecht hung up with Viezca,
Mendoza called Albrecht. The two men
arranged the details of another drug
purchase to take place at a local
restaurant.
Albrecht went to the restaurant he and
Mendoza had agreed upon. Mendoza was not
there; however, Sammy Guerrero showed up
in his place. Unfamiliar with Guerrero,
Albrecht asked him if he knew Gallo.
Guerrero responded affirmatively and
identified himself as Mendoza’s nephew.
The two men proceeded to get into the car
Guerrero had driven to the restaurant.
Having seen police officers in the
restaurant, the two men drove away from
the restaurant, and Guerrero gave
Albrecht 27.8 grams of cocaine in
exchange for $850.00.
In April of 1997, Albrecht again
contacted Viezca. He explained that he
had tried to communicate with Mendoza
about another purchase, but that he had
not been able to get in touch with him.
Viezca indicated that there were no drugs
available to be purchased, but when
Albrecht told him that Mendoza directed
him to call him that day, Viezca agreed
to talk with his brother. Viezca later
contacted Albrecht and confirmed that a
purchase was not possible at that time.
However, he told Albrecht to call him
later that week to see if the situation
had changed.
Viezca, Mendoza, and Guerrero were all
subsequently arrested and indicted in a
three-count indictment. Count one of that
indictment charged Viezca, along with
Mendoza and Guerrero, with conspiring to
possess with the intent to distribute
cocaine in violation of 21 U.S.C. sec.
846. The indictment alleged that, on two
separate occasions, quantities of cocaine
were delivered to an individual as a
result of the conspiracy. Mendoza and
Guerrero both pleaded guilty; however,
Viezca pleaded not guilty and was tried
and convicted by a jury. Because of prior
felony convictions, the district court
determined that Viezca was a career
offender, and subsequently sentenced him
to 262 months imprisonment. He now
appeals.
II. Analysis
A. Sufficiency of the Evidence
Viezca’s first claim on appeal alleges
that the evidence produced at trial was
insufficient to support his conviction
for conspiring to possess with the intent
to distribute cocaine in violation of 21
U.S.C. sec. 846. We have explained that
"a defendant who attacks the legal
sufficiency of the evidence supporting a
conviction faces a nearly insurmountable
burden." United States v. Phillips, 239
F.3d 829, 842 (7th Cir. 2001) (quotation
omitted). In reviewing Viezca’s claim, we
view the evidence in the light most
favorable to the government and draw all
reasonable inferences in its favor. See
United States v. Gardner, 238 F.3d 878,
879 (7th Cir. 2001). Additionally, we
will overturn the jury’s verdict "only if
the record contains no evidence from
which the jury could have found guilt
beyond a reasonable doubt." United States
v. Jefferson, 252 F.3d 937, 942 (7th Cir.
2001) (quotation omitted).
To prove that Viezca was a part of a
conspiracy, the government had to
demonstrate that a conspiracy existed and
that Viezca knowingly agreed to join it.
See United States v. Albarran, 233 F.3d
972, 976 (7th Cir. 2000) (explaining that
the government must "show that there is
substantial evidence that the particular
defendant in question knew of the illegal
objective of the conspiracy and agreed to
participate in its achievement.")
(quotation omitted). The government may
prove these elements entirely by way of
circumstantial evidence. See United
States v. Pagan, 196 F.3d 884, 889 (7th
Cir. 2000) ("All that is necessary is
enough circumstantial evidence to
support, beyond reasonable doubt, an
inference that the defendants agreed
among themselves to distribute drugs.")
(quotation omitted). Furthermore, the
requisite agreement between co-
conspirators need not be explicit and no
overt act is required. See United States
v. Sanchez, 251 F.3d 598, 601 (7th Cir.
2001) ("[I]n the murky world of illicit
drugs, conspiracies are, by necessity,
loosely-knit associations.").
Viezca contends that the evidence
presented by the government at his trial
established nothing more than the fact
that he was an intermediary between a
willing buyer, Terry Albrecht, and a
willing seller, Ronald Mendoza.
Alternatively, Viezca argues that the
only possible conspiracy established by
the government’s evidence was one between
himself and Albrecht, but that because
Albrecht was acting as a government
agent, no such conspiracy is legally
recognizable. We do not agree with either
of these arguments.
From the initial meeting between Viezca
and Albrecht in November of 1996, to
their final conversation in April of
1997, Viezca’s role exceeded that of
simply bringing together a buyer and
seller of cocaine. Despite Viezca’s
comment at the initial meeting that he
"did not do shit right now," the evidence
collected from the extensive government
surveillance conducted in this case
demonstrated to the jury that Viezca made
repeated efforts to establish, maintain,
and facilitate what he and his brother
both thought would be a long term illegal
business relationship with Albrecht.
Thus, we find that there was sufficient
evidence for the jury to conclude that
Viezca and Mendoza forged an agreement to
distribute cocaine to Albrecht, and that
therefore, Viezca was guilty of
conspiring to possess with the intent to
distribute cocaine.
B. Sears Instruction
In his second claim, Viezca argues that
the district court should have provided
the jury with a Sears instruction to
inform the jury that Terry Albrecht could
not be a conspirator because he acted in
cooperation with the government. He
further contends that based on the
evidence presented at trial, the district
court’s failure to sua sponte instruct
the jury that Albrecht could not be a
bona fide co-conspirator constitutes
reversible error. Because Viezca neither
requested such an instruction nor
objected to the lack of such an
instruction during his trial, our review
of the district court’s decision not to
provide the jury with this instruction is
for plain error. See Fed. R. Crim. P.
52(b). Therefore, "we must decide (1)
whether there was an error at all, (2)
whether it was plain, (3) whether it
affected the defendant’s substantial
rights, and (4) whether (if the first
three factors are present) it seriously
affected the fairness, integrity, or
public reputation of the judicial
proceedings." United States v. Martinez,
No. 00-1967, 2001 WL 783739, at *4 (7th
Cir. July 12, 2001) (quotation omitted).
In Sears v. United States, 343 F.2d 139
(5th Cir. 1965), the Fifth Circuit
reversed a portion of Sears’ conviction
because it found that the district court
had committed error by refusing to
instruct the jury that it could not find
him guilty of conspiracy if the only
agreement it found him to have entered
into was one by which he unknowingly
agreed to assist with the illegal
activities of a government informant who
secretly intended to frustrate the
conspiracy. Id. The court explained that
such an instruction should have been
given by the district court because "[i]n
view of the posture of the evidence and
the charge actually given by the court,
the jury may well have actually believed
that it could convict Sears simply by
believing that he agreed with [the
government informant] and accepted bribes
from him." Id. at 142.
This court has subsequently cited Sears
for the proposition that "an agreement
with an agent of the police is not a
criminal conspiracy." United States v.
Duff, 76 F.3d 122, 127 (7th Cir. 1996).
In Duff, this court concluded that the
district court erred in denying the
request of one of the defendants that an
instruction be given to the jury explain
ing that a government informant could not
be considered to be a bona fide
conspirator. 76 F.2d at 127. In reaching
this conclusion, we found that the
wording of the indictment, which "alleged
that the 17 defendants ’did
knowinglyconspire together and with
diverse other persons known and unknown
to the Grand Jury,’" left open the
possibility that the informant could have
been one of these "diverse other persons
known and unknown to the Grand Jury." Id.
Additionally, we observed that the
informant’s "drug transactions with the
defendants played a prominent role in the
trial." Id. Thus, we found that the
defendant was "entitled to have the jury
told in no uncertain terms, that, if the
sole agreement into which [the defendant]
entered was with [the informant] then
[the defendant] had to be acquitted of
conspiracy." Id. at 127. We found this
error to be harmless, however, because
trial testimony indicated that the
defendant was an active supervisor of the
relevant drug organization, whereas the
informant was a newcomer to the
organization who had to be shown the
basics of the drug trade. See id. at 127-
28. Thus, we concluded that "no
reasonable jury would have thought that
[the defendant] agreed only with [the
informant]." Id. at 128. Accordingly,
since "the omission of the instruction .
. . did not matter," we simply noted that
"it should be given the next time a
similar situation crops up." Id. Viezca
now contends that the present case is
that next time this court referred to in
Duff.
We agree with Viezca that there are
similarities between this case and Duff.
Portions of Count one of the indictment
in this case were worded much like the
indictment in Duff, as it charged Viezca,
Mendoza, and Guerrero with having
"conspired and agreed with each other,
and with others known and unknown to the
Grand Jury, knowingly and intentionally
to possess with intent to distribute
cocaine." Additionally, as in Duff, the
communications and interaction between
Viezca and Albrecht, the government
informant in this case, played a
significant role in Viezca’s trial. We
find an important difference in this
case, however, that persuades us to
conclude that the absence of a Sears
instruction was not improper. From the
district court’s initial description of
the case to the venire, to the closing
arguments of both the government and
Viezca’s attorney, Viezca’s three-day
trial focused on the sole issue of
whether Viezca entered into an agreement
with Mendoza and Guerrero to supply
Albrecht with cocaine on an ongoing
basis. Furthermore, unlike in Sears and
Duff, the evidence presented at the trial
did not necessitate that a Sears instruc
tion be given to the jury. Although
Viezca’s communications and interactions
with Albrecht were presented to the jury,
they were introduced to the jury in the
specific context of demonstrating
Viezca’s knowing agreement with Mendoza
to distribute cocaine to Albrecht. Thus,
we find that no reasonable jury could
have concluded that Viezca agreed with
Albrecht alone. Therefore, we conclude
that the district court’s decision not to
provide the jury sua sponte with a Sears
instruction did not constitute an error,
much less a plain error requiring
reversal of Viezca’s conviction.
C. Potential Juror Bias
Viezca’s final claim on appeal
challenges the district court’s denial of
his motion for a new trial based on juror
bias. He argues that the district court
should have granted this motion because
one of the jurors lied during voir dire
about his father’s legal problems. We
review the district court’s denial of
Viezca’s motion for an abuse of
discretion. See United States v. Wilson,
237 F.3d 827, 831-32 (7th Cir. 2001). In
reviewing the district court’s decision,
we must accept the court’s findings
unless they are clearly erroneous. See
United States v. Pigee, 197 F.3d 879, 888
(7th Cir. 1999).
Jury selection in this case began with
the district court clerk calling a group
of twenty-one individuals including Jess
Gill. The court posed general questions
to the entire group, followed by a series
of additional questions put to each
individual. Among the court’s questions
to Gill was the following inquiry:
The Court: Okay. Have you, a member of
your family, or any close friends ever
been arrested for any criminal offenses
other than minor traffic violations?
Juror Gill: No.
Tr. at 67-69. Both parties accepted Gill
as a juror, and he was later chosen to be
the foreperson of the jury. After the
jury convicted Viezca, the government
learned that Juror Gill’s father had been
charged in 1996 with making false
statements in connection with loan and
credit reports in violation of 18 U.S.C.
sec. 1014, and failing to file tax
returns in violation of 26 U.S.C. sec.
7203. Juror Gill’s father pleaded guilty
to these charges and was sentenced to
twelve months’ incarceration. Because of
health problems, however, his report date
to begin serving his sentence had been
delayed, and he had not yet reported to
federal authorities as of September 22,
2000--the date of the hearing at which
the district court considered Viezca’s
motion for a new trial. It was also
subsequently discovered that Juror Gill’s
father had been arrested on two previous
occasions: once in 1967 and once in 1980.
The district court considered Viezca’s
motion for a new trial at the September
22, 2000 hearing. In considering this
motion, the court questioned Juror Gill
regarding his answer to the court’s
inquiry as to whether he or anyone in his
family had ever been convicted of a
criminal offense other than a minor
traffic violation. Gill explained that he
knew his father had visited the Dirksen
Federal Building, and that he had legal
problems, more specifically a tax
problem, but he stated that he did not
think that it was a criminal problem and
therefore "didn’t attach that to a
conviction or an arrest." He further
indicated that he was not aware of his
father’s other arrests, and that his
father had only told him after he served
on the jury at Viezca’s trial that he had
actually been convicted of a crime. After
concluding its inquiry, the court gave
the government and Viezca’s attorney the
opportunity to question Juror Gill. The
government also produced a copy of the
Pre-Sentencing Report compiled in
connection with the offenses Juror Gill’s
father pleaded guilty to in 1996. This
report indicated that the father
specifically asked the probation officer
not to contact his family members and
that he had not told his sons at that
point about his criminal problems. After
listening to Juror Gill’s testimony and
the respective arguments proffered by the
government and Viezca’s attorney, the
court made the following findings:
[W]e’ve had Mr. Gill testify here today
before this Court. You each had an
opportunity to also inquire of him. I’ve
looked at Mr. Gill as I inquired of him
and as you inquired of him. I watched
him. I looked in his face. I looked at
his demeanor. I am totally convinced by
the manner in which he testified that he
is telling the truth. I believe that he
did not know that his father had, in
fact, been criminally prosecuted.
Notwithstanding that that question wasn’t
even asked, I frankly believe that, and
it is definitely supported by the
probation report which reveals it. That
report was prepared long before this
occurred, and it reveals that [Juror
Gill’s father] specifically requested
that his sons not be made of aware [sic]
the fact that he had, in fact, been
convicted of this criminal offense. So I
think the evidence is overwhelming that
he is telling the truth, that he did not
lie when he was inquired of during voir
dire.
Tr. at 28-29. The court then considered
Viezca’s motion in the context of the
analysis articulated by the Supreme Court
in McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 104 S. Ct. 845,
78 L. Ed. 2d 663 (1984) ("We hold that to
obtain a new trial in such a situation, a
party must first demonstrate that a juror
failed to answer honestly a material
question on voir dire, and then further
show that a correct response would have
provided a valid basis for a challenge
for cause."). The court denied the
motion, noting that it had already found
that Juror Gill answered the questions at
voir dire truthfully. The court further
commented that, because Viezca had
accepted a person as a juror who had been
convicted in a court-martial proceeding,
it did not think that knowing about Juror
Gill’s father would have made a
difference in the jury selection process.
In reaching her decision to deny
Viezca’s motion, Judge Manning reviewed
all of the available information describ
ing the circumstances surrounding Juror
Gill’s father, as well as the exact
questions posed to Juror Gill at
theoriginal voir dire and his answers.
Furthermore, at the September 22 hearing,
Judge Manning specifically questioned
Juror Gill about the extent of his
knowledge regarding his father’s legal
troubles and she carefully observed both
Juror Gill’s statements in response to
these questions as well as his demeanor
in answering. Accordingly, although the
situation involving Juror Gill was indeed
peculiar, our review of the court’s
findings leaves us confident that Juror
Gill answered each question put to him at
the initial jury selection process in a
forthright and honest manner and that,
therefore, a new trial is not warranted.
See McDonough Power Equip., Inc., 464
U.S. at 556. Thus, because we find that
Judge Manning’s findings of fact were not
clearly erroneous, and that she did not
abuse her discretion in denying Viezca’s
motion for a new trial, we will set aside
this claim.
III. Conclusion
For the aforementioned reasons, we AFFIRM
Viezca’s conviction.