United States v. Huerta, Elizabeth

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1940
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELIZABETH HUERTA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 99 CR 103--James T. Moody, Judge.
Argued November 30, 2000--Decided February 2, 2001
Before RIPPLE, MANION and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Elizabeth Huerta was
charged with distributing cocaine and possessing
with intent to distribute, in violation of 21
U.S.C. sec. 841(a)(1). Following a trial, Ms.
Huerta was found guilty, and the district court
sentenced her to 235 months’ imprisonment. For
the reasons set forth in the following opinion,
we affirm Ms. Huerta’s conviction and sentence.
I
BACKGROUND
A. Arrest and Interrogation
Officers of the Michigan City, Indiana, Police
Department received information on December 18,
1998, that an employee of PSW Industries, Inc.
("PSW") named Elizabeth Huerta was trafficking in
narcotics. Police identified Ms. Huerta’s car in
the PSW parking lot and followed it to a local
Subway restaurant, where they observed an alleged
drug transaction. Ms. Huerta and the putative
purchaser were stopped, and Ms. Huerta was
arrested.
The police recovered two baggies containing 6.7
grams of cocaine from the purchaser. Ms. Huerta,
for her part, had in her possession a pager,
$4,957 in cash, three notebooks, a scrap of paper
with writing on it, and a check for $353.
Detectives also conducted a search of Ms.
Huerta’s locker at PSW/1 and found sixteen
plastic bags inside two pairs of shoes containing
a total of 163.27 grams of cocaine.
1.
Back at the station, Detectives Bush and Swistek
began interviewing Ms. Huerta at approximately 5
p.m. The details of the interviews are disputed.
The Government contends that the detectives first
advised Ms. Huerta of her constitutional rights.
Then, they presented her with a waiver of rights
form, which included questions as to whether she
had read and understood her rights, desired an
attorney, had been subjected to threats or
promises, and was willing to talk to police.
There were spaces for Ms. Huerta to initial each
inquiry, indicating that she understood it, and
spaces to write answers to questions regarding
waiver of rights.
Detective Bush, as was his practice, read the
form aloud and instructed Ms. Huerta to stop him
with any questions. She then initialed the
document, answered the questions, and signed the
form. She initially wrote yes in response to the
question "Has any force, threats or promises of
any kind or nature been used by anyone to
influence you to waive these rights?". Trial Tr.,
Vol. 4 at 85. After the detectives asked her if
she meant to indicate yes, she said that she had
made a mistake, changed her answer to no, and
initialed the change. At no time did Ms. Huerta
inform the detectives that she wanted an attorney
or that she had called one.
During this first interview, Ms. Huerta denied
selling cocaine. She did not respond to a
particular question during the discussion; when
asked why not, she indicated that she was
thinking about whether she needed an attorney.
The detectives then ended the interview.
After the interrogation had concluded, the
detectives learned that an attorney had arrived
to see Ms. Huerta. The lawyer had left, however,
before the interrogation was completed. The
detectives did not tell Ms. Huerta of the visit
because they did not intend to interrogate her
further.
Later that evening, at approximately 10:30 p.m.,
Detectives Bush and Westphal decided to take as
evidence the shoes Ms. Huerta was wearing. When
Ms. Huerta questioned the detectives’ actions,
they told her they wanted the shoes to compare
them to the shoes found in her locker. The
detectives began to walk away, and Ms. Huerta
called to them to come back and informed them
that she wanted to talk.
After discussing how to proceed, Detectives Bush
and Swistek began a second interview at
approximately 10:50 p.m./2 Ms. Huerta was
apprised of her constitutional rights and was
again presented with a waiver of rights form,
which Detective Swistek read aloud. She initialed
where required, answered the waiver questions,
and signed the form. Ms. Huerta then admitted to
the sale of cocaine that had occurred earlier
that day and to the possession of the cocaine in
her locker.
In addition to these oral statements, the
detectives took a taped statement. The tape began
with the detectives advising Ms. Huerta of her
rights and includes questions and answers
reflecting the fact that Ms. Huerta initiated the
second interview and that she was not coerced. In
the taped statement, Ms. Huerta again admitted to
distributing and possessing cocaine. She also
identified her supplier as an individual named
Jesse. She indicated that the notebooks contained
records of money owed to Jesse and not to her.
After taking police officers to the place where
she obtained drugs from her supplier, Ms. Huerta
was released on bond.
2.
Ms. Huerta, in contrast, sets forth a
dramatically different set of events. She related
that she called her brother after she was
arrested and requested that her attorney come to
the station. During the interview with police,
Ms. Huerta told the officers that she did not
want to talk without her attorney and that her
attorney was on his way. The detectives told her
that she did not need an attorney because they,
the detectives, were her attorneys. The
detectives also informed Ms. Huerta that she did
not need an attorney until she went to court. Ms.
Huerta wrote her request for an attorney on the
waiver form; the police, unhappy that she
requested a lawyer, tore up the form.
Ms. Huerta was then presented with a second
waiver form. When she wrote yes in response to
the intimidation question, it was not a mistake
but rather an expression of how she felt. The
detectives pressured her to change her answer to
no and to initial the change. In the
interrogation that followed, Ms. Huerta denied
her involvement with the drugs.
Sometime during the interview in which Ms.
Huerta denied involvement with the drug sale, her
attorney arrived at the police station. No one
told Ms. Huerta, however, that he was there.
Apparently, the lawyer grew tired of waiting and
left. The detectives also told Ms. Huerta that,
if she told them what they wanted to hear, she
would be permitted to go home for Christmas and
be with her children; otherwise, she would not
see them again. Detective Bush told Ms. Huerta
that he would not use the drugs found in her
locker if she talked to him. Ms. Huerta signed a
third waiver of rights form around 11 p.m. and
gave a statement admitting her involvement in the
distribution of drugs through PSW. She now
maintains that this statement was untruthful; she
made up a story only to give the detectives "what
they wanted to hear" so that she could go home.
Suppression Hearing Tr. at 31. She also contends
that the police turned the tape on and off and
rewound as necessary to record the statement
exactly the way they wanted it.
Ms. Huerta submits, too, that she had taken some
medicine shortly before noon, affecting her
ability to understand the events at the police
station. She had eaten nothing before she was
arrested and had been given nothing to eat while
in custody.
B. Suppression Hearing
In a two-count indictment filed on June 17,
1999, Ms. Huerta was charged with distributing
cocaine and possessing cocaine with intent to
distribute. She was arrested on July 1, 1999,
and, following a detention hearing, was detained
pending trial. On July 6, 1999, Ms. Huerta pled
not guilty, and the matter was set for trial.
Prior to trial, Ms. Huerta filed a motion to
suppress (1) the statements she had made to the
police and (2) the evidence that the police had
found in her locker at work. The district court
denied both motions after an evidentiary hearing
on October 12, 1999. Both Ms. Huerta and the
detectives who questioned her testified at the
suppression hearing. Ms. Huerta set forth her
story of coercion and police misconduct, as
detailed in part A. The officers denied tearing
up the first waiver form, coercing Ms. Huerta to
waive her rights and make a statement, telling
her that they were her attorneys, telling her she
could go home if she cooperated, and manipulating
the tape recorder to fabricate a statement.
The district court denied Ms. Huerta’s motion to
suppress her oral and tape-recorded statements to
the police, relying primarily on Detective Bush’s
and Detective Swistek’s testimony. Specifically,
the court found credible their testimony that,
when Ms. Huerta requested a lawyer, they ceased
their questioning. The court found, too, that Ms.
Huerta initiated the next contact with the
detectives when she said she wanted to speak
further with them. The court concluded that both
the oral and tape-recorded statements were
voluntarily made and that the waivers preceding
them were similarly voluntary and intelligent.
C. Trial and Sentencing Hearing
At trial, which began on October 26, 1999, the
Government submitted into evidence the tape-
recorded statement that Ms. Huerta had attempted
to suppress, notebooks taken from Ms. Huerta when
she was arrested, and testimony from a special
agent with the Drug Enforcement Administration
("DEA") indicating that those notebooks contained
records of drug transactions (known as "drug
notes"). The three detectives involved in the
interrogation of Ms. Huerta testified again, as
did Ms. Huerta herself. Each witness relayed the
same story as that presented at the suppression
hearing, except that Ms. Huerta put forth in more
detail an alternate explanation of the events
precipitating her arrest./3
The jury returned a verdict of guilty on both
counts on October 28, 1999. In the presentence
investigation report, the probation officer
recommended that Ms. Huerta be held responsible
for 5.26 kilograms of cocaine, including the 6.7
grams that Ms. Huerta allegedly had distributed
the day she was arrested, 163.27 grams possessed
for distribution on that day, and 5.1 kilograms
for sales reflected in the drug notes. The report
also suggested that Ms. Huerta receive a two-
level increase for obstruction of justice based
on perjurious testimony given at the detention
and suppression hearings and at trial. Ms. Huerta
objected both to the use of the drug notes in the
drug amount calculation and the increase for
obstruction of justice.
A sentencing hearing was held on March 29, 2000.
At the hearing, a government expert calculated
the amount of drug sales reflected in the drug
notes. The court also heard Ms. Huerta’s recorded
statements about the notebooks. She admitted that
the books were drug records, although she claimed
that they reflected her supplier’s transactions.
At trial, however, she conceded that at least one
notebook was hers but claimed that the notes were
records of welding done at work and of money she
loaned to others.
The district court concluded that Ms. Huerta was
responsible "at a bare minimum" for 5.26
kilograms of cocaine, adding together the 6.7
grams distributed on the day of arrest, 163.27
grams possessed for distribution on that day, and
5.1 kilograms for sales set forth in the drug
notes. Sentencing Hearing Tr. at 47. The court
also found that Ms. Huerta had obstructed justice
when she committed perjury at her detention and
suppression hearings and at trial. The court,
therefore, increased Ms. Huerta’s offense level
by two levels.
Based on these findings, the district court
established an offense level of 34 and a criminal
history category of III, with a guideline range
of 188 to 235 months. The court sentenced Ms.
Huerta to a term of 235 months’ imprisonment on
both counts, to be served concurrently. Ms.
Huerta now appeals.
II
ANALYSIS
Ms. Huerta makes five principal claims on
appeal: (1) that her confession was involuntary;
(2) that the police violated her rights to remain
silent and have counsel present during
interrogation; (3) that the police committed a
due process violation by not informing her of her
attorney’s visit; (4) that the evidence offered
at the sentencing hearing to calculate other
relevant conduct was unreliable; and (5) that the
quantity of drugs should have been considered an
element of the crime and submitted to the jury.
We shall address each in turn.
A. Voluntariness of Confession
Ms. Huerta claims that the detectives used
threats, promises of leniency, and other coercive
tactics to induce her to confess involuntarily. A
district court may admit a confession into
evidence only if the accused made it voluntarily.
See United States v. Dillon, 150 F.3d 754, 757
(7th Cir. 1998). A confession is voluntary if, in
the totality of the circumstances, it is the
"product of a rational intellect and free will
and not the result of physical abuse,
psychological intimidation, or deceptive
interrogation tactics that have overcome the
defendant’s free will." Id. Thus, coercive police
activity is a "necessary predicate to the finding
that a confession is not ’voluntary’ within the
meaning of the Due Process Clause of the
Fourteenth Amendment." Colorado v. Connelly, 479
U.S. 157, 167 (1986).
Whether a confession is voluntary is a matter of
law that we review de novo, but the
"determination of the historical facts of the
case are the proper domain of the trial court and
. . . our review of its finding in that regard
will be for clear error." United States v.
Jordan, 223 F.3d 676, 683 (7th Cir. 2000)
(citation and quotation marks omitted). A finding
of fact is clearly erroneous when a review of the
entire record leaves us with a "definite and firm
conviction that a mistake has been made." Dillon,
150 F.3d at 757. Under the clearly erroneous
standard, "if two permissible views exist, the
fact-finder’s choice between them cannot be
clearly erroneous." United States v. Hardamon,
188 F.3d 843, 848 (7th Cir. 1999) (citation and
quotation marks omitted). The clearly erroneous
standard is especially deferential of a district
judge who has conducted a suppression hearing,
heard the conflicting testimony, observed the
witnesses, and then reached a determination about
whom to believe. See United States v. Springs, 17
F.3d 192, 194 (7th Cir. 1994).
More specifically, we analyze coercion from the
perspective of a reasonable person in the
position of the suspect. See United States v.
Brooks, 125 F.3d 484, 492 (7th Cir. 1997).
Factors relevant to that determination are the
defendant’s age, education, intelligence level,
and mental state; the length of the defendant’s
detention; the nature of the interrogations; the
inclusion of advice about constitutional rights;
and the use of physical punishment, including
deprivation of food or sleep. See id. Narcotics,
alcohol, and fatigue also may be considerations
in a particular case. See id.Because Ms. Huerta and the Government both set
forth a significantly different description of
events, this challenge "boils down to a question
of credibility." Dillon, 150 F.3d at 757. Ms.
Huerta asserts that her confession was
involuntary, based on the following events: her
requests for an attorney were rejected; police
tore up the waiver form where she asserted her
right to counsel; police threatened her and
forced her to change her answer on the waiver
form indicating that they did not coerce her;
police turned on and off the tape recorder to
manipulate her statement; her medication
prevented her from understanding the proceedings;
she had not eaten all day and was tired; police
promised her that if she confessed, she could go
home for Christmas and be with her children;
police promised that they would not use the drugs
recovered from her locker if she confessed;
police told her she did not need an attorney
until she went to court; and police told her that
they were her attorneys.
The district court--twice--heard testimony of
both Ms. Huerta and the three detectives involved
in the interrogations and chose to believe the
police version of events. In the suppression
hearing, for example, the court deemed "credible"
testimony that the police ceased questioning Ms.
Huerta upon her request for an attorney.
Suppression Hearing Tr. at 152. The court also
found that Ms. Huerta reinitiated questioning
later in the evening. She was again advised of
her Miranda rights, the court found, and she
signed a written waiver before confessing orally.
The court explicitly concluded that both the
waiver and oral statement were voluntarily made.
The court found, too, that Ms. Huerta was then
advised of her rights for the third time, waived
them knowingly and intelligently, and voluntarily
made the tape-recorded statement.
As we noted earlier, we defer to a district
court’s credibility determination unless the
district court has chosen to credit exceedingly
improbable testimony. See Dillon, 150 F.3d at
758. Ms. Huerta has made no showing that the
district court’s determination was exceedingly
improbable; she merely presents a contradictory
statement of facts. That is not enough. In United
States v. Smith, 218 F.3d 777 (7th Cir. 2000),
for example, we explained that the defendant’s
motion to suppress "presents ’a factual dispute,’
a veritable ’she said’ versus ’they said.’ The
District Court ruled against [the defendant]
after hearing evidence, saying [the defendant’s]
testimony was ’totally unbelievable.’ We must
give deference to the District Court’s findings
of fact and credibility determinations." Id. at
780 (citations omitted). We point out, too, that
the district court did more than disbelieve Ms.
Huerta’s testimony; it found that she committed
perjury at the detention and suppression hearings
and at trial, thereby warranting a sentencing
enhancement for obstruction of justice.
We thus conclude that the detectives’ testimony
is not exceedingly improbable. No evidence, other
than that provided by Ms. Huerta, indicates that
the police threatened, deliberately confused, or
otherwise coerced her. Moreover, no credible
evidence exists that Ms. Huerta was too tired,
medicated, or hungry to understand the
proceedings. She remained in custody for
approximately eleven hours, a long time but not
oppressively so, and was not continuously
interrogated during that period. There is no
indication that Ms. Huerta informed the
detectives of the medication she had ingested on
an empty stomach. Further, Detective Bush
testified at trial that department practice
mandates that the desk sergeant ensures that all
suspects are fed./4
In addition, Ms. Huerta is somewhat experienced
in the criminal justice system, although she
claims that she never has been subjected to
interrogation and the intricacies of waiver. She
has been convicted twice of other drug-related
felonies; when she was arrested on the charges at
issue in this appeal, she was still on supervised
release from her last conviction.
Accordingly, we do not believe that the district
court erred in finding Ms. Huerta’s confession
voluntary.
B. Waiver of Miranda Rights
Ms. Huerta also asserts that the police violated
her rights to remain silent and have counsel
present during interrogation. See Miranda v.
Arizona, 384 U.S. 436, 444 (1966). She maintains
that she invoked her right to counsel but that
the detectives continued to interrogate her. She
requested counsel at the start of the
interrogation, as well as indicated this
preference on the waiver of rights form that was
destroyed. Ms. Huerta also argues that she did
not voluntarily waive her right to counsel; at
the time she signed the last waiver, she had been
in custody for approximately eleven hours, was
tired, was on medication, and had not eaten all
day.
We review de novo the determination of the trial
court that a waiver of Miranda rights was
voluntary. See Smith, 218 F.3d at 780; United
States v. Mills, 122 F.3d 346, 350 (7th Cir.
1997). Again, however, the district court’s
findings of historical fact are not reversed
unless clearly erroneous. See United States v.
Westbrook, 125 F.3d 996, 1001 (7th Cir. 1997). In
Miranda, the Supreme Court ruled that a waiver is
valid if made voluntarily, knowingly, and
intelligently. See 384 U.S. at 444. The Court
elaborated on the standard in Edwards v. Arizona,
451 U.S. 477 (1981), in which it held that the
waiver must be "of a known right or privilege, a
matter which depends in each case upon the
particular facts and circumstances surrounding
that case." Id. at 482 (citation and quotation
marks omitted). Factors considered in the
analysis include the defendant’s background,
experience, and conduct. See North Carolina v.
Butler, 441 U.S. 369, 374-75 (1979).
Ms. Huerta’s Miranda arguments, like her
voluntariness claim, do not demonstrate that the
district court erred. Indeed, they reiterate the
identical factual assertions that the district
court rejected with respect to her voluntariness
claim. As the district court found, the
detectives ended the interview once Ms. Huerta
indicated that she desired to exercise her right
to counsel. The detectives did not speak to Ms.
Huerta again until they asked her for her shoes,
an exchange that does not constitute
interrogation under Rhode Island v. Innis, 446
U.S. 291, 300-01 (1980), and its progeny. We
cannot disagree with the district court’s
conclusion that Ms. Huerta herself initiated the
second interview by asking first why the officers
wanted the shoes and then informing them that she
wanted to talk further. Because Ms. Huerta
initiated the second conversation, the police
could interrogate her despite the earlier
invocation of counsel. See Edwards, 451 U.S. at
484-85 (setting forth the prophylactic rule that
once a suspect asserts his right to counsel,
further interrogation should not take place
unless the "accused himself initiates further
communication, exchanges, or conversations with
the police").
Even if the suspect reinitiates conversation,
however, the burden "remains upon the prosecution
to show that subsequent events indicated a waiver
of the Fifth Amendment right to have counsel
present during the interrogation." Oregon v.
Bradshaw, 462 U.S. 1039, 1044 (1983). Before the
second interrogation began, Ms. Huerta was
advised of her rights and then signed the form
indicating waiver, thus fulfilling the waiver
requirement. Ms. Huerta did testify that she was
heavily medicated, tired, and had not eaten all
day, but the district court implicitly credited
the detectives’ testimony that they regularly fed
all suspects. There was no evidence that Ms.
Huerta’s behavior indicated that she was under
the influence of medication. Further, just
because Ms. Huerta was tired does not establish
that her will was "overborne." Brooks, 125 F.3d
at 492. Under the totality of the circumstances,
therefore, we do not see any evidence that Ms.
Huerta’s lack of food or sleep or her medicated
state interfered with her capacity to make a
knowing and intelligent waiver.
C. Visit from Attorney
Ms. Huerta also maintains that the police never
told her that her lawyer had arrived at the
station to see her. The Government explains that
the lawyer, tired of waiting, left the station
and that the detectives did not know the lawyer
had arrived until after the first interview had
been completed and the lawyer already had
departed. Furthermore, the police did not mislead
the attorney or make any statements of any kind
to the attorney. Although we are troubled by the
police’s behavior, a close examination of the
record does not reveal a basis that warrants,
under settled precedent, a reversal on this
ground.
In Moran v. Burbine, 475 U.S. 412 (1986), the
Supreme Court held that the failure to inform a
defendant of an attorney’s presence does not
invalidate an otherwise valid waiver of the right
to counsel. See id. at 422. An attorney, who had
been retained by the accused’s sister, contacted
the police station where the accused was being
held. Although the attorney received assurances
that the accused would not be questioned until
the next day, the interrogation that yielded the
inculpatory statements began later that evening.
Moreover, the police did not tell the accused
about the attorney’s call. The Supreme Court
found no violations of the Fifth or Sixth
Amendments in the police’s conduct, explaining
that:
Events occurring outside of the presence of the
suspect and entirely unknown to him surely can
have no bearing on the capacity to comprehend and
knowingly relinquish a constitutional right. . .
. No doubt the additional information would have
been useful to respondent; perhaps even it might
have affected his decision to confess. But we
have never read the Constitution to require that
the police supply a suspect with a flow of
information to help him calibrate his
self-interest in deciding whether to speak or
stand by his rights. . . . Once it is determined
that a suspect’s decision not to rely on his
rights was uncoerced, that he at all times knew
he could stand mute and request a lawyer, and
that he was aware of the State’s intention to use
his statements to secure a conviction, the
analysis is complete and the waiver is valid as a
matter of law.
Id. at 422-23.
Ms. Huerta relies, specifically, on the due
process component of Moran. The Supreme Court
recognized in Moran the constitutional protection
of "canons fundamental to the traditions and
conscience of our people." Id. at 432 (citation
and quotation marks omitted). Although the Court
determined that the police misconduct in Moran
did not rise to the level of a due process
violation, it noted that a violation may be found
when such behavior "so shocks the sensibilities
of civilized society." Id. at 433-34.
Based on the Supreme Court’s holding in Moran,
we do not believe that the Michigan City Police
Department has conducted itself in a manner
violative of due process. In Moran, the police
actually misled the attorney by telling him that
his client would not be interrogated that day,
yet this act did not constitute a due process
violation. See also Matney v. Armontrout, 956
F.2d 824, 825-26 (8th Cir. 1992) (holding that
police failure to inform the accused of his
attorney’s attempts to contact him and
misstatements to the attorney as to whether the
accused was at the police station did not violate
the accused’s due process rights).
In Ms. Huerta’s case, there is no evidence that
the police misled her attorney. Rather, the
record shows only a lack of knowledge. The
investigating detectives did not know that Ms.
Huerta’s attorney had arrived until after the
attorney had departed and the interrogation had
been concluded. The detectives never relayed this
information to Ms. Huerta, but, as Detective Bush
explained, he did not think he would be talking
with her again. These circumstances, taken alone
or together, are not as egregious as the facts in
Moran and Armontrout and, therefore, do not shock
the "sensibilities of civilized society."/5
D. Drug Quantity Calculation
At the sentencing hearing, the district court
found that Ms. Huerta’s other relevant conduct
included the 5.1 kilograms of cocaine reflected
in her drug notes. This conclusion was based on
testimony given by two government witnesses,
testimony Ms. Huerta now denounces as unreliable.
In determining a drug offender’s base offense
level, a district court considers quantities of
drugs that were not specified in the count of
conviction but that were part of the "same course
of conduct or common scheme or plan" as the
offense of conviction. United States Sentencing
Guideline sec. 1B1.3(a)(2); see also United
States v. Johnson, 227 F.3d 807, 813 (7th Cir.
2000). A district court’s determination of the
quantity of drugs included as relevant conduct is
a finding of fact that we review for clear error.
See Hardamon, 188 F.3d at 848. Thus, we shall not
reverse the district court’s decision unless we
are left with a "definite and firm conviction
that a mistake has been committed." United States
v. United States Gypsum Co., 333 U.S. 364, 395
(1948); United States v. Brown, 136 F.3d 1176,
1184 (7th Cir. 1998).
We have noted that a district court may consider
a "wide range of information" when calculating
drug quantities, so long as the court has a
"sufficient indicia of reliability to support its
probable accuracy." United States v. Robinson,
164 F.3d 1068, 1070 (7th Cir. 1999) (citation and
quotation marks omitted). When assessing the
reliability of the evidence, we leave
"credibility determinations to the sound
discretion of the district court." United States
v. Johnson, 200 F.3d 529, 537 (7th Cir. 2000);
see also Johnson, 227 F.3d at 813 (noting that a
sentencing court’s credibility determinations are
accorded "exceptional deference"). Further,
courts have, in the past, utilized drug notes to
calculate drug quantities. See United States v.
Cagle, 922 F.2d 404, 407 (7th Cir. 1991); see
also United States Sentencing Guideline sec.
2D1.1, application note 12 (explaining that
courts determining drug quantities may consider
"financial or other records").
Both expert witnesses proffered by the
Government--one at trial and one at the
sentencing hearing--testified that some of the
notebooks were drug notes. Both individuals have
a good deal of experience working on drug-related
matters. Witness Balbo is a special agent with
the DEA and has been involved in "many hundreds"
of drug investigations. Trial Tr., Vol. 4 at 133.
Witness Carlson works with narcotics trafficking
records, is responsible for keeping the DEA’s log
on the street price of cocaine, and teaches
seminars on drug notes.
The witnesses testified that the references in
the drug notes to "w" were to cocaine, confirmed
for them by the dollar amounts listed in the
adjacent column on the page, figures that
corresponded to the current street price for
cocaine. Notably, the dates listed in the books
ended the day of Ms. Huerta’s arrest. Although a
handwriting comparison was not performed, the
notebooks were in Ms. Huerta’s possession when
she was arrested, and, as Balbo testified, drug
dealers typically keep their drug notes readily
available.
In addition to the expert testimony, the
district court heard Ms. Huerta’s taped
statements made the day of her arrest. On the
tape, Ms. Huerta admitted that the notebooks were
drug records, although she claimed that they
reflected her supplier’s drug transactions. She
conceded at trial that at least one of the
notebooks belonged to her; she maintained,
however, that the "w"’s were references to
welding projects at work.
Ms. Huerta argues that the testimony of both
witnesses was unreliable. The handwriting in the
notebooks was never identified as hers. The
letter "w" was listed only six or seven times in
twenty-eight pages in the notebooks. In sum, Ms.
Huerta submits, the expert testimony failed to
establish that the notations in the books were
directly related to her; that all the substances
referred to were cocaine; and that the notations
and distributions were of the same, or part of
the same, course of conduct, scheme, or plan as
the two charges of which Ms. Huerta was
convicted.
Again, where there are two permissible views of
the evidence, we review the factfinder’s choice
between them only for clear error. See Hardamon,
188 F.3d at 848. It was within the district
court’s discretion to credit the testimony of the
expert witnesses, and we believe that evidence is
sufficiently reliable to withstand our limited
review. More precisely, both witnesses explained
that the notebooks were drug notes. Both
testified that the "w" notations referred to
cocaine. The dates listed in the book stopped
abruptly on the day of Ms. Huerta’s arrest, and
Ms. Huerta admitted at trial that at least one of
the notebooks was hers. No facts directly
contradicted the witnesses’ testimony. We
conclude, therefore, that the evidence underlying
the witnesses’ testimony had a sufficient indicia
of reliability. The district court’s drug
quantity calculation must be upheld.
E. Apprendi Issue
Ms. Huerta also submits that the district court
committed plain error by not submitting the
question of drug quantity to the jury for its
determination. We cannot agree. In Apprendi v.
New Jersey, 120 S. Ct. 2348, 2362-63 (2000), the
Supreme Court held that "[o]ther than the fact of
a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt." Although
Apprendi does apply to 21 U.S.C. sec. 841, the
statute under which Ms. Huerta was convicted,
there was no error in this case because the
sentence imposed--235 months--was within the
statutory maximum penalty for possession with
intent to distribute cocaine regardless of the
quantity of the drug involved. See Talbott v.
Indiana, 226 F.3d 866, 869 (7th Cir. 2000) ("When
a drug dealer is sentenced to less than 20 years’
imprisonment--the limit under 21 U.S.C. sec.
841(b)(1)(C) for even small-scale dealing in
Schedule I and II controlled substances . . .
Apprendi is irrelevant."). Our precedent
interpreting Apprendi has made clear that its
holding is inapplicable in situations in which
the sentence established is not "more severe than
the statutory maximum for the offense imposed by
the jury’s verdict." Apprendi, 120 S. Ct. at 2361
n.13; see also Hernandez v. United States, 226
F.3d 839, 841-42 (7th Cir. 2000).
Conclusion
Accordingly, Ms. Huerta’s conviction and
sentence are affirmed.
AFFIRMED
/1 The human resources manager at PSW informed the
police that PSW policy permitted the company to
search employee lockers. The resulting search was
the subject of a motion to suppress, which the
district court denied. The issue is not before us
in this appeal.
/2 Detective Swistek was present for only part of
this second interrogation. Detective Westphal
replaced him when he left the room to attend to
other business.
/3 Specifically, Ms. Huerta claimed that she went to
Subway to purchase a sandwich for lunch and met a
co-worker, Elmo Long, there. Long had owed her
money and had given her a check for $353 but had
forgotten to endorse it. Long entered Ms.
Huerta’s vehicle, signed the check that Ms.
Huerta had taken from her pocket, and handed it
back to her. Ms. Huerta also gave Long $150 that
she owed him, which Long put in his pocket.
Ms. Huerta also explained at trial that the day
before she was arrested, she dropped off a car at
a used car lot. The morning of her arrest, she
sold the car to a friend between 5 a.m. and 6
a.m. and received $4,957 in cash.
/4 Ms. Huerta claims that she was not offered food
until just before she was released, some eleven
hours after first being taken into custody.
/5 Ms. Huerta attempts to distinguish her case from
that in Moran by noting that she, unlike Mr.
Moran, specifically invoked her right to counsel.
The district court, however, made no specific
findings regarding the attorney’s visit or
whether the police knew that Ms. Huerta was
expecting an attorney, and the record is
underdeveloped in this regard. There is no
testimony from Ms. Huerta’s lawyer as to what
occurred at the station, for example, nor is
there testimony from the desk sergeant who
interacted with the lawyer. All we have is Ms.
Huerta’s explanation of what happened and
testimony of the detectives that they were
alerted to the lawyer’s presence after the lawyer
had already left and the interrogation had
concluded. Thus, without specific evidence to the
contrary, we must defer to the district court’s
general acceptance of the police’s explanation of
events.