United States v. Nunez-Guzman

554 F. App'x 507
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 5, 2014
DocketNo. 12-1522
StatusPublished
Cited by2 cases

This text of 554 F. App'x 507 (United States v. Nunez-Guzman) 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. Nunez-Guzman, 554 F. App'x 507 (7th Cir. 2014).

Opinion

ORDER

A jury convicted Bernabe Nunez-Guzman on three of eight counts of a second superseding indictment charging him and nine others with participating in the large-scale cultivation of marijuana near Green Bay, Wisconsin. The district court ordered him to serve 136 months in prison, a term well below the low end of the range suggested by the Sentencing Guidelines. Nunez-Guzman appeals both his conviction and sentence. He contends that the court should have suppressed the identification of one of the witnesses who named him as a participant in the marijuana operation, on the ground that the identification was the product of improperly suggestive questioning and display of his photograph to the witness by a law enforcement officer. He also contends that the district court committed procedural error in sentencing him, in that the court held him accountable for conduct underlying charges on which the jury had acquitted him, and further that the court did not adequately consider several of his arguments in mitigation. Because none of these arguments has merit, we affirm Nunez-Guzman’s conviction and sentence.

I.

Our summary of the facts may be brief. The conspirators in this case were charged with cultivating thousands of marijuana plants at multiple sites in northeastern Wisconsin during the spring and summer of 2010. Adopting a practice popularized by Mexican drug cartels, the conspiracy grew much of the marijuana on plots secreted within federal lands, including the Chequamegon-Nicolet National Forest and the nearby Menominee Indian Reservation. Raul Juvenal Avila-Rodriguez (“Raul Avila”) ran the cultivation operation from a residence in Seymour, Wisconsin, a small town roughly fifteen miles from the city of Green Bay. The residence — a converted cheese factory — was used to dry and process marijuana plants that had been harvested from the grow sites. Law enforcement agents raided the property in August 2010 and immediately saw that it was being used to prepare large quantities of marijuana for distribution. They arrested Raul Avila and eight undocumented Mexican nationals who were assisting him with the operation.

Nunez-Guzman owned the Seymour residence; in addition, a 1994 blue pick-up truck that had been used by the conspirators was titled to his business. At trial, Nunez-Guzman testified that he was simply an unwitting, innocent landlord who had leased the residence and truck to people he had no idea were putting them to illegal use. Two witnesses, however, tied him directly to the conspiracy. Jose Louis Sandoval-Mendoza (“Sandoval”) and Javier Navarro-Zarragoza (“Navarro”), were among the eight men arrested at the Seymour residence along with Raul Avila; and both testified on the government’s behalf at trial. They knew Nunez-Guzman by the nickname “Green Bay,” identified him at trial, and indicated that he assisted Raul Avila with the management of the marijuana operation. Sandoval testified that when [510]*510he and three other men flew from California to the city of Green Bay in April 2010 to work for the marijuana operation, Raul Avila and Nunez-Guzman met them at the airport; Nunez-Guzman then drove Sandoval to the Seymour residence. The ride took 20 to 25 minutes. Navarro testified that Nunez-Guzman had driven him between one of the grow sites and the Seymour residence on at least two occasions, and had also delivered food to the grow site at which he was working on two occasions. In addition to this testimony, there was other evidence linking Nunez-Guzman to the conspiracy: He not only provided the pickup truck but kept it in repair and provided a loaner when the pickup was undergoing repair; his business wrote checks payable to Raul Avila; he purchased several saws (including a pruning saw) and 27 seed starter trays that were used by the conspirators; he and Raul Avila drove field workers to one of the cultivation sites for harvesting on August 5, 2010 (five days prior to the raid of the Seymour house); he purchased an AK-47 style assault rifle that was found in the raid on the Seymour residence; phone records reflected over 600 calls between Raul Avila’s and Nunez-Guzman’s phones during the summer of 2010; Nunez-Guzman conceded that he had telephonic contact with Raul Avila and two other individuals associated with the Seymour residence, including five hours of calls with Raul Avila during May 2010; and five of the cell phones seized from the Seymour residence in August 2010 included Nunez-Guzman’s telephone number in the list of contacts, several of those identifying the number by the name “Grin Vey,” which of course in Spanish sounds like “Green Bay.”

II.

A.

Before trial, Nunez-Guzman unsuccessfully sought to suppress evidence that Sandoval had, during post-arrest questioning, identified a photograph of him as “Green Bay,” and also to preclude any such in-court identification of Nunez-Guzman by Sandoval. Nunez-Guzman argued that the out-of-court identification was the product of impermissible suggestion by the agent who questioned him, in that the agent essentially conducted a “show-up” by presenting Sandoval with a driver’s license photograph of Nunez-Guzman. See R. 45-1. After conducting an evidentiary hearing on Nunez-Guzman’s motion, at which a video recording of the interview of Sandoval was played, the district court (Hon. William C. Griesbaeh) declined to suppress the identification. The court noted that this was “very unusual and not like the typical identification motion,” R. 315 at 46, in which a victim or witness who had only a brief opportunity to observe the perpetrator of a crime is asked to view a lineup or photograph array and indicate whether the authorities have identified the correct suspect, id. at 46-47. Instead, in the course of questioning Sandoval at length about the marijuana operation, the agent had shown him pictures of various men and asked whether Sandoval recognized them. Sandoval himself had taken part in the marijuana operation and had worked on a daily basis with most of the persons whose pictures he was shown. Id. at 47. Given Sandoval’s familiarity with the scheme and its participants, the agent interviewing him about the scheme could expect that Sandoval would be able to readily identify his criminal cohorts from photographs without the sort of difficulty that a victim or bystander might have. So the court did not find it remarkable that the agent would show Sandoval a series of photographs and ask him whether or not he could identify the individuals depicted. Id. When the agent showed Sandoval the [511]*511driver’s license photo of Nunez-Guzman, Sandoval had, with confidence, identified it as a photograph of the man he knew as “Green Bay.” Id. at 48. The court found that the agent had in no way suggested that Sandoval should recognize the photo as one of Nunez-Guzman or otherwise prompted the identification. Id. at 47-48. The court also rejected the contention that a discussion of Nunez-Guzman between the agent and Sandoval just prior to the identification had somehow influenced the latter. Id. Nor was the court concerned by the fact that the photograph of Nunez-Guzman differed from the other photos that Sandoval was shown in the sense that it was a department of motor vehicles (“DMV”) photograph rather than a mug shot. Id. at 48. “He [the agent] is trying to figure out who is involved in the operation and given the manner in which this [interview] is conducted, I do not see any suggestiveness.” Id.

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Bluebook (online)
554 F. App'x 507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-nunez-guzman-ca7-2014.