United States v. Leonel Ruiz

178 F.3d 877, 51 Fed. R. Serv. 1487, 1999 U.S. App. LEXIS 9353, 1999 WL 305062
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 17, 1999
Docket98-1698
StatusPublished
Cited by35 cases

This text of 178 F.3d 877 (United States v. Leonel Ruiz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Leonel Ruiz, 178 F.3d 877, 51 Fed. R. Serv. 1487, 1999 U.S. App. LEXIS 9353, 1999 WL 305062 (7th Cir. 1999).

Opinion

ROVNER, Circuit Judge.

Leonel Ruiz was convicted of conspiracy to possess cocaine with intent to distribute, and possession of cocaine with intent to distribute. He was sentenced to 235 months imprisonment on each count, to run concurrently. He argues on appeal that the district court abused its discretion in admitting the testimony of two witnesses under Fed.R.Evid. 404(b), and that the evidence was insufficient to support the conviction. 1 He also challenges his sentence, contending that the district court erroneously imposed a two-level increase for possession of a gun, and erred in attributing 29 kilograms of cocaine to him in determining relevant conduct.

I.

On November 3, 1994, sheriff deputies working with the DEA stopped a pickup truck south of Milwaukee and found 3 kilograms of cocaine in a Miller beer 12-pack box behind the passenger seat. They also found a bottle of Inositol — a common cutting agent for cocaine — under the seat. Leonel Ruiz was riding in the passenger seat at the time of the stop, and was arrested along with the driver.

In a statement to DEA agents, Ruiz declared that he had spent the prior night with a male friend in Niles or Chicago, but could not recall the friend’s name or address. He stated that he drove directly from his friend’s house to a ranch owned by Ramon Navarro. When asked why he was wearing a pager, he said “I don’t know. Sometimes for work.” He then admitted that he was unemployed when asked where he worked. Finally, he disclaimed any knowledge of the cocaine in the truck.

Unbeknownst to Ruiz, the police had maintained surveillance on him since he left his home that morning. Through ground and air surveillance, DEA agents observed Ruiz leave his residence in Waukegan with his girlfriend and drive alone in his car to Navarro’s ranch. He parked the car near a small outbuilding, and later moved it to another location on the property. Ruiz and Navarro later drove from the ranch in the pickup truck that was stopped near Milwaukee.

A narcotics detection canine was brought to Ruiz’ car which was still parked at the ranch, and the dog alerted to the left rear quarter panel of the car and an area in the backseat near the driver’s side door. In the backseat area, a DEA agent found that the panel near the armrest had been removed, the screws were loose, and factory-installed insulation was removed, apparently creating a “trap compartment” often used by narcotics traffickers to transport narcotics. A search of the ranch revealed more cocaine and drug paraphernalia. Ruiz’ residence in Waukegan was also searched, yielding a 9mm semi-automatic handgun with an obliterated serial number and a small quantity of cocaine.

At trial, a number of witnesses testified about Ruiz’ drug trafficking. The testimony revealed that Ruiz would often meet people at hotels in Waukegan to conduct cocaine transactions. He was almost always armed when at the hotels. Ruiz also transported 2 to 4 kilograms of cocaine from Waukegan to Milwaukee each week. The government also presented testimony of prior narcotics transactions pursuant to *880 Federal Rule of Evidence 404(b). Eduardo Salurso and Jesus Diaz testified that they purchased cocaine in kilo quantities from Ruiz on some occasions from 1989 to 1992.

II.

We note at the outset that a number of Ruiz’ challenges, including his attack on the sufficiency of the evidence, are based upon challenges to the credibility of the witnesses. Credibility determinations by the jury will be reversed on appeal only in exceptional circumstances, such as “where it was physically impossible for the witness to observe that which he claims occurred, or impossible under the laws of nature for the occurrence to have taken place at all.” United States v. Hach, 162 F.3d 937, 942 n. 1 (7th Cir.1998). Ruiz has argued no such circumstances here. His challenge to the sufficiency of the evidence is therefore without merit. We are left, then, with only a few claims.

Ruiz challenges the admission under Rule 404(b) of evidence of other acts involving drugs, asserting that they bear no temporal relationship to the acts underlying the indictment. Rule 404(b) generally prohibits other crime evidence, but provides in relevant part that “[e]vidence of other crimes, wrongs, or acts ... may ... be admissible ... as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....” The government presented the testimony of witnesses Eduardo Salurso and Jesus Diaz regarding drug activity that took place between 1989 and 1992 involving Ruiz. The testimony was offered to establish Ruiz’ intent regarding the 1994 conspiracy, which is a proper purpose under Rule 404(b). The second part of the test, however, requires that the other acts be similar enough and close enough in time to be relevant to the matter in issue. Ruiz asserts that the testimony should have been excluded as too remote in time, because the acts occurred two years before the charged conspiracy. The analysis of “how long is too long” is a flexible one, and the answer depends on the theory for which the evidence is offered. United States v. Torres, 977 F.2d 321, 326 (7th Cir.1992). In this case, the answer hinges on whether the two-year time period is proximate enough for those acts to be relevant to Ruiz’ intent in committing the charged crime. Id. at 326-27.

Contrary to Ruiz’ apparent assumption, two years is not an inherently unacceptable gap under Rule 404(b). In fact, this court has upheld the admission of testimony under Rule 404(b) that involved gaps in time dramatically longer than two years. See, e.g., United States v. Kreiser, 15 F.3d 635 (7th Cir.1994) (7-year gap in time); United States v. Harrod, 856 F.2d 996 (7th Cir.1988) (5-year gap in time). 2 In particular, if the acts are similar in nature to those of the charged crime, even a substantial gap in time may not destroy the relevance of the acts to the determination of the defendant’s intent in committing the charged conduct. Ruiz does not argue that the 1989 to 1992 acts were dissimilar from the charged conduct, relying instead on a bare assertion that two years is too long. Our review indicates that Salurso and Diaz testified regarding drug activities that were in fact similar in nature to those for which Ruiz was charged. Although the persons involved in the 1989 through 1992 drug activities were not the same as those in the charged conspiracy, the acts bore a number of parallels with the charged conduct. Both the Rule 404(b) evidence and the charged conduct involved the supply of kilogram quan *881 tities of cocaine by Ruiz to dealers in Milwaukee from his base in the Waukegan area.

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Bluebook (online)
178 F.3d 877, 51 Fed. R. Serv. 1487, 1999 U.S. App. LEXIS 9353, 1999 WL 305062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-leonel-ruiz-ca7-1999.