United States v. Ramiro Cabello

16 F.3d 179, 1994 U.S. App. LEXIS 2036, 1994 WL 32299
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 7, 1994
Docket93-1108
StatusPublished
Cited by22 cases

This text of 16 F.3d 179 (United States v. Ramiro Cabello) 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. Ramiro Cabello, 16 F.3d 179, 1994 U.S. App. LEXIS 2036, 1994 WL 32299 (7th Cir. 1994).

Opinion

KANNE, Circuit Judge.

Ramiro Cabello was convicted of one count of conspiracy to distribute cocaine and two counts of distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1) & 846. He was sentenced to 400 months of imprisonment. He appeals the conspiracy conviction, contending that the testimony of the two government witnesses was insufficient to link him to the conspiracy. He also challenges his sentence because the amount of cocaine involved in the conspiracy was used to calculate his base offense level.

I. Background

The Rodríguez-Corral group was a drug alliance that dealt primarily with cocaine. The group would purchase one kilogram at a time, paid for by Gilberto Rodríguez-Corral (“Gilberto”). The “holder” of the one kilogram shipment rotated among selected members of the group. Cabello’s sister, Maria Cabello (“Maria”), was Gilberto’s live-in girlfriend and a member of the group. She operated a video store which was one of the drug distribution points.

Cabello’s girlfriend, Elizabeth Santos, testified that from 1988 through 1990, Cabello was “fronted” cocaine by Maria, receiving the drugs on credit and paying for them after he had made the sales. While the shipment lasted, Santos would accompany Cabello to the video store “on a daily basis” to pick up the drugs. After the day’s cocaine sales, Maria would pick up the drug money from Cabello’s residence.

Gilberto occasionally was in the store when Santos and Cabello picked up the cocaine, but Santos never saw Cabello get drugs directly from Gilberto. On one occasion, Maria did not have any cocaine when Cabello and Santos came for the daily supply. Shortly after Maria placed a phone call, another member of the group, Jose Rodriguez, arrived and gave Cabello five ounces of cocaine.

On November 7, 1990 Cabello distributed one-eighth of an ounce of cocaine to an undercover officer and during the transaction, he discussed possible future sales with the officer. In the taped conversation, he stated: “I’ve got everything ... Whatever you want I get, I got. I’ve got marijuana, I’ve got heroin, I’ve got the.... ” He also told the officer that “when you are in business, you can’t trust nobody.” Cabello subsequently distributed another ounce of cocaine to the same officer.

Jesus Adame, a government informant, testified that Gilberto was his cocaine supplier for a time. He had met at least one other member of the Rodriguez-Corral group at Cabello’s bar, though no transaction between Adame and the group took place there. After Adame began cooperating with the Drug Enforcement Agency, he bought six ounces of cocaine from Cabello because Gilberto, his regular supplier, did not return his telephone calls. He paid Cabello half of what he owed for the cocaine. Thereafter, he was ap *181 proached by Gilberto about the remaining payment. Gilberto told Adame that it was his money. Adame subsequently purchased more drugs from the Rodriguez-Corral group but never directly from Cabello.

The fourteen person Rodriguez-Corral group was charged in a thirty-five count indictment. Ramiro Cabello, Maria Cabello, and Jose Rodriguez were tried together and were all convicted of the conspiracy count. The total amount of cocaine attributable to the conspiracy was approximately 87.75 kilograms. That quantity puts Cabello at the base offense level of 36.

II. Analysis

Cabello asserts that the testimony of Santos and Adame was insufficient to prove that he joined the conspiracy. The government contends that Cabello waived the sufficiency of evidence challenge on appeal because he failed to make a motion for judgment of acquittal at the close of the government’s case or at the close of the evidence. Given that omission, the government argues that the court should review only for a manifest miscarriage of justice.

A review of the record shows that although Cabello did not move for acquittal at the end of the government’s case, he joined with the other co-defendants’ motion for judgment of acquittal at the close of all the evidence. 1 Cf. United States v. Teague, 956 F.2d 1427, 1433 (7th Cir.1992) (failure to renew motion for acquittal at the close of trial or within seven days after the verdict constitutes a waiver on appeal of any challenge to the sufficiency of the evidence); Wright, Federal Practice and Procedure: Criminal 2d § 463. Thus, Cabello’s sufficiency of the evidence challenge is not waived.

A. Sufficiency of the Evidence

When reviewing for sufficiency of the evidence, this court considers the evidence and accompanying inferences in the light most favorable to the government and reverses only if there is no evidence from which the jury could find guilt beyond a reasonable doubt. United States v. Goines, 988 F.2d 750, 758 (7th Cir.1993). This court will not reweigh the evidence or evaluate the credibility of witnesses. United States v. Dortch, 5 F.3d 1056, 1065 (7th Cir.1993) (citing United States v. Maholias, 985 F.2d 869, 874 (7th Cir.1993)).

“To sustain a conspiracy conviction, the government must provide substantial evidence that a conspiracy existed and that the defendant knowingly agreed to join it.” United States v. Pazos, 993 F.2d 136, 139 (7th Cir.1993). The government’s evidence can be entirely circumstantial. Id.; United States v. Durrive, 902 F.2d 1221, 1225 (7th Cir.1990). Because Cabello concedes that a conspiracy existed, the only question is whether he joined that conspiracy given “the evidence of drug transactions presented by the government.” United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir.1991).

Cabello argues that his mere association with or knowledge of the Rodriguez-Corral group is insufficient to establish that he joined the conspiracy. See United States v. Salazar, 983 F.2d 778, 781 (7th Cir.1993) (“Evidence of ‘mere association with conspirators, knowledge of the conspiracy, and presence during conspiratorial discussions,’ without more, will not do the trick”) (citing United States v. Paiz, 905 F.2d 1014, 1020 (7th Cir.1990), cert. denied, 499 U.S. 924, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991)); United States v. Lechuga,

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Bluebook (online)
16 F.3d 179, 1994 U.S. App. LEXIS 2036, 1994 WL 32299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ramiro-cabello-ca7-1994.