United States v. Pimentel, Josue

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 14, 2006
Decided December 21, 2006
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
No. 05-4085
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Indiana, Evansville Division
v.
No. EV 04-07-CR-05-Y/H
JOSUE BABINES PIMENTEL,
Defendant-Appellant. Richard L. Young,
Judge
ORDER
A jury found Josue Babines Pimentel guilty of participating in a conspiracy to
distribute and to possess with intent to distribute more than 500 grams of
methamphetamine and 100 kilograms of marijuana. Though he concedes that the
government adduced enough evidence to establish the existence of the conspiracy,
Babines Pimentel argues that there was insufficient evidence from which the jury
could reasonably find beyond a reasonable doubt that he was a participant. We
disagree and hold that the government presented evidence sufficient to establish
that Babines Pimentel had participated in the conspiracy by helping to disassemble
No. 05-4085 Page 2
and reconstruct the cars which were used for shipments of drugs and also by
assisting in the selling of drugs. Accordingly, we affirm the judgment of conviction.
I.
In November 2003 local law enforcement officials began investigating a group
trafficking in large quantities of methamphetamine and marijuana around
Vincennes, Princeton, Evansville, and Washington, Indiana. The organization, led
by Francisco Ramirez and Alfonso Amaral, had drug suppliers in California and
Mexico. During the next several months, police officers, in cooperation with the
DEA, conducted undercover operations, executed search warrants, and arrested
numerous members of the organization.
Babines Pimentel and his wife were identified by Amaral’s girlfriend, Jessica
Fox, as associates of Amaral. Fox knew Babines Pimentel as “the mechanic”
because he used his skills as an auto mechanic to assist in the disassembling of
drug-laden cars when they arrived with the drug shipments from California.
Babines Pimentel was taken into custody and later charged with conspiring to
distribute and to possess with intent to distribute methamphetamine and
marijuana, 21 U.S.C. §§ 846, 841(a)(1), using a telephone to facilitate the
distribution of methamphetamine, id. § 843(b), and possessing firearms in
furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i). The government
later decided not to pursue the telephone charge.
At trial, the government called several witnesses against Babines Pimentel.
Two members of the DEA task force in Evansville, police officer Dennis Holt from
Vincennes and state trooper Robert Hornbrook, testified extensively about the
police work that led officers to Ramirez and Amaral and the ensuing investigation
of their organization. All told, officers had seized at least two kilograms of
methamphetamine, 20 firearms, a “lethal explosive device,” $50,000 in cash, and
four vehicles, resulting in 14 members of the conspiracy being charged with various
crimes. Officer Holt also testified about the search of Ramirez’s home, where
officers found, in addition to about a half-pound of marijuana, an identification card
bearing Babines Pimentel’s name and photograph.
Jessica Fox, who was likewise charged as part of the conspiracy, was also a
witness against Babines Pimentel. She testified that Ramirez went by the name of
“Frankie,” and Amaral was also known as “Panchie,” and they were receiving large
shipments of methamphetamine from California about twice per month. The drugs
were stashed in vehicles’ drive shafts and tires as well as in other parts of the cars.
Fox testified that Babines Pimentel, whom she knew at the time only as “the
mechanic,” assisted Ramirez and Amaral in removing the drugs from the cars.
According to Fox, Babines Pimentel worked out of his garage, taking the cars apart
No. 05-4085 Page 3
that other members of the conspiracy brought to him. On cross examination Fox
admitted that she never saw Babines Pimentel dismantling cars but that Amaral
had told her about it. Fox also testified that every week Babines Pimentel was
“getting ounces, maybe two at the most” of methamphetamine, which he in turn
sold. Fox testified that Amaral would “front” the drugs to Babines Pimentel and
give him “a week or less” to make payment. Fox also described a controlled
transaction in which she participated after she began cooperating with the police.
She called Babines Pimentel and spoke to him and his wife about a debt they owed
Amaral for fronted drugs. Babines Pimentel and his wife then came to the house
Fox shared with Amaral and gave Fox $1500 in cash, which Fox gave to the police.
The jury heard a recording of the phone calls.
Officer Holt, who was present during Fox’s calls to Babines Pimentel,
testified that after Babines Pimentel delivered the money to Fox, police officers got
a warrant to search Babines Pimentel’s home, where the officers discovered
methamphetamine, digital scales, plastic bags, a handgun, a rifle, and two
shotguns. They also found a list of phone numbers that included contact
information for a “Frank” and a “Panchie” and an “owe sheet,” or ledger for keeping
track of drug sales. Officers also searched Babines Pimentel’s garage and found two
cars, one of which contained paperwork indicating that it belonged to Pablo
Echeverria, another indicted member of the conspiracy.
Once in custody, Babines Pimentel was interviewed by police with the
assistance of a Spanish translator. Officer Holt testified that the defendant, after
initially claiming to be innocent, eventually admitted that he was assigned by
Amaral and Ramirez to perform mechanical work on vehicles that arrived from
California containing shipments of drugs. He related one incident in which Amaral
and another man asked him to remove the tail lights from a minivan; they asked
that he remove “not just the tail lens cover, but the whole [tail light] assembly.” He
did so, and he later observed Amaral and the other man removing “football-shaped”
packages from the opening that he had made in the tail light. Babines Pimentel
admitted that he believed the packages contained drugs, although he said he was
unsure whether it was marijuana or methamphetamine. Babines Pimentel also
spoke somewhat ambiguously about an occasion when Ramirez brought a car to
Babines Pimentel’s garage for repairs and removed from the car what Babines
Pimentel described as a “hidden spare tire.”1 Ramirez departed with the tire, and
1
It is unclear from Officer Holt’s testimony who removed the tire. Babines
Pimentel emphasizes this ambiguity, (Appellant’s Br. at 13), but the identity of the
person who actually removed the tire matters little given Babines Pimentel’s
admission that he was present and “working on vehicles.”
No. 05-4085 Page 4
when he returned, according to Babines Pimentel, “the tire was no longer inflated,”
suggesting that perhaps Ramirez had removed something from inside the tire.
According to Officer Holt, Babines Pimentel also confessed to dealing drugs.
He admitted that Amaral fronted him quantities of methamphetamine, which he
later paid for at a rate of $1200 per ounce. Babines Pimentel sold the
methamphetamine in small quantities for about $100 per gram. Babines Pimentel
also admitted that he had taken the four guns that the police officers had
discovered in his home “on trade for methamphetamine.” At the close of the
government’s case-in-chief, Babines Pimentel unsuccessfully moved for a judgment
of acquittal, see Fed. R. Cr. P. 29(a). The defense did not offer any evidence. The
jury found Babines Pimentel guilty of the drug conspiracy and not guilty of the
firearms offense.
II.
On appeal Babines Pimentel argues that there was insufficient evidence to
convict him because “the evidence . . . shows that Mr. Babines worked on certain
cars, but not in the capacity of a participant in a drug conspiracy.” A defendant
seeking to overturn a jury verdict for insufficient evidence faces a “daunting”
standard. United States v. Suggs, 374 F.3d 508, 518 (7th Cir. 2004). We view the
evidence and draw all reasonable inferences in the light most favorable to the
prosecution and will uphold the verdict if any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Id.; see United
States v. Irorere, 228 F.3d 816, 822 (7th Cir. 2000).
To convict Babines Pimentel of participation in the drug conspiracy, the
government had to prove (1) a conspiracy existed; and (2) Babines Pimentel “knew
about the conspiracy and chose to participate in it.” United States v. Carrillo, 435
F.3d 767, 775 (7th Cir. 2006); see United States v. Curtis, 324 F.3d 501, 505 (7th Cir.
2003). As Babines Pimentel concedes, “[i]t would be untenable to argue that a
conspiracy did not exist,” and therefore the only question is whether the
government met its burden of proving Babines Pimentel’s involvement. Babines
Pimentel focuses on his role as “the mechanic” and argues that the evidence shows
only that he serviced various automobiles, not that he knowingly participated in the
conspiracy. Noticeably absent from his brief is any mention of the evidence that he
not only worked on cars, but also directly participated in selling drugs.
Taken as a whole, the evidence was sufficient to allow a rational jury to find
Babines Pimentel guilty of participating in the conspiracy. The evidence shows that
he was involved in two different ways. First, he used his knowledge of cars to
disassemble the vehicles that arrived from California with drugs stashed in them.
Second, he dealt drugs. Babines Pimentel argues that Jessica Fox’s testimony was
No. 05-4085 Page 5
too weak to prove that he knowingly assisted in drug trafficking by working on the
cars Ramirez and Amaral brought to him. But we “will not reweigh the evidence
presented or second-guess the jury’s credibility determinations.” Irorere, 228 F.3d at
822. Fox—a member of the conspiracy herself—testified that Amaral told her that
Babines Pimentel regularly took apart incoming cars from California, and the jury
was entitled to credit this testimony. Babines Pimentel’s confession corroborates
Fox’s statement, and no other evidence in the record contradicts it. Babines
Pimentel contends that his statement to police proves only that he worked on cars,
not that “the parcels indeed contained a controlled substance and that Babines
Pimentel was knowingly involved in their extrication.” However, this additional
step was not required because a particular defendant’s involvement in a conspiracy
may be established through circumstantial evidence. Carrillo, 435 F.3d at 775;
United States v. Miller, 405 F.3d 551, 555 (7th Cir. 2005). And the circumstances
Babines Pimentel described, such as the packages removed from the minivan’s tail
lights and the tire that Ramirez emptied, support the inference that Babines
Pimentel knew he was providing more than run-of-the-mill automotive services.
Thus, the jury could reasonably conclude that he knowingly chose to participate in
the conspiracy by facilitating the importation of drugs.
Moreover, as Babines Pimentel entirely overlooks in his brief, the
government offered evidence that he was involved in the conspiracy as a distributor
of drugs as well. Fox’s testimony, the evidence discovered at Babines’s home, and
Babines Pimentel’s confession establish that he was selling drugs on an ongoing
basis, and, more importantly, that Amaral “fronted” him methamphetamine to sell.
Selling drugs on credit is a hallmark of a conspiracy. See Suggs, 374 F.3d at 508;
Irorere, 228 F.3d at 822-23. And Babines Pimentel extended the same favor to some
of his customers, as evidenced by ledger recovered from his home. Given the
evidence that portrays Babines Pimentel as a participant in the conspiracy on two
levels, we can hardly say that no rational jury could have found Babines Pimentel
guilty beyond a reasonable doubt.
The judgment of conviction is AFFIRMED.