United States v. Vasquez

635 F.3d 889, 2011 U.S. App. LEXIS 4973, 2011 WL 855850

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 14, 2011
• Docket: 09-4056
• Status: Published

Opinions

EVANS, Circuit Judge.

A jury convicted Alexander Vasquez of conspiring to possess more than 500 grams of cocaine with intent to distribute. He was subsequently sentenced to serve a term of 240 months. On appeal, Vasquez asks us to reverse his conviction and remand the case for a new trial on several grounds: that the judge (1) should have excluded evidence of his prior drug conviction; (2) should have granted his motion to suppress evidence found in a warrantless search of an automobile; (3) deprived him of a meaningful opportunity to cross-examine a government witness; and (4) should not have admitted recordings of telephone conversations between a defense witness and a co-defendant. We begin with the facts.

Vasquez and two co-defendants, Joel Perez and Carlos Cruz, were arrested in Arlington Heights, Illinois, following a failed cocaine transaction. The day’s events started in the parking lot of a Shell gas station, moved to a nearby parking lot at a Denny’s Restaurant, and finally to the shared parking lot of a Walmart and McDonald’s. The deal that flopped began several days earlier when Perez contacted Cruz about obtaining a kilogram of cocaine. Cruz then called Alejandro Diaz, whom he knew to be involved in cocaine deals. Cruz, however, didn’t know that Diaz was cooperating with law enforcement agents. Cruz, Perez, and Diaz arranged for a deal to go down in Arlington Heights on August 5, 2008.

On the day that it all came tumbling down, Cruz and Perez, with Cruz driving, went to the Shell station for the deal. There, they met Diaz who instructed them to follow him to another location to get the cocaine. Instead, Perez walked to the Denny’s parking lot next door where Vasquez was waiting for him in a black Bonneville. Perez slid into the passenger seat of the car and called Cruz on a cell phone telling him that he was not willing to follow Diaz; he wanted to complete the deal at the current location. Cruz then went to the Denny’s lot where he was introduced to Vasquez. Shortly thereafter, Diaz called Cruz to find out why they were not following him. Cruz told Diaz that Perez wanted to complete the deal in the parking lot. Perez told Cruz to tell Diaz that “we got the money here.” Vasquez repeated the statement, “tell him we got the money here.” Cruz hung up with the understanding that Diaz was returning to complete the deal.

Several minutes later, and after Diaz contacted his handler, DEA Agent James Chupik, law enforcement agents surrounded the parking lot and approached the Bonneville to arrest Cruz, Perez, and Vasquez. In addition to several unmarked cars, six officers approached the Bonneville on foot. As the officers approached, Cruz, who was outside of the car, raised his hands in surrender. Vasquez’s reaction was not nearly as submissive. He put the Bonneville in reverse, striking two Arlington Heights police cars. He then shifted gears and headed for the exit. Agent Chupik moved in front of the Bonneville, pointed his gun at Vasquez, and commanded him to stop. But Vasquez showed no signs of stopping so Agent Chupik jumped out of the way as the Bonneville sped out of the parking lot heading west onto the eastbound lanes of Algonquin Road.

A few minutes later, police located the Bonneville abandoned in a nearby Walmart parking lot. A bystander told the police he saw two men run from the vehicle toward a McDonald’s. An Aldington Heights detective pursued Vasquez and Perez as they ran through the kitchen of the McDonald’s and then out the back door.

At that point, Vasquez and Perez split up, each running in a different direction. But the chase was short lived — they were quickly apprehended by Arlington Heights police. The police found a cell phone on Vasquez, and two cell phones on the ground near Perez. Phone records showed that there were calls between Vasquez and both of Perez’s phones the day before and the day of the arrest.

The Arlington Heights police towed the Bonneville to the police station. During a search of the car later that day, they found a hidden compartment in the passenger side of the dashboard containing $23,000 in cash.

Based on this evidence, a federal grand jury returned an indictment charging Vasquez with conspiring to possess with intent to distribute more than 500 grams of cocaine and with attempting to possess with intent to distribute more than 500 grams of cocaine, each in violation of 21 U.S.C. § 846.

As the case progressed, Vasquez filed a motion to suppress the evidence recovered from the search of the Bonneville and the government filed a motion to admit, pursuant to Federal Rule of Evidence 404(b), evidence of Vasquez’s involvement in a cocaine transaction in 2002. The district judge denied Vasquez’s motion and granted the motion filed by the government. The judge found that the police had probable cause to search the Bonneville and that the 2002 cocaine transaction, which resulted in a conviction, was admissible to show Vasquez’s knowledge and intent under Rule 404(b).

At trial, Agent Chupik testified for the government. Among other things, he testified that he instructed Diaz to have Cruz and his “customers” come to a gas station in Arlington Heights for the transaction. But according to the actual transcript of the call, which the government later published, Cruz referred to a single customer as “him” and “this dude.” On cross-examination, Vasquez’s counsel attempted to impeach Agent Chupik on this point by refreshing his memory. The judge limited cross-examination, however, finding that the difference between “customers” and “customer” in this instance was a trivial detail.

Later in the trial, Vasquez called several witnesses, including Perez’s wife, Marina. Later still, the judge allowed the government to recall Marina to the stand and, among other things, question her about telephone conversations she had with her husband while the case was still pending.

Ultimately, the jury found Vasquez guilty on the conspiracy count and not guilty on the attempt charge. Issues concerning the recall of Marina to the stand and the telephone conversations she had with her spouse are at the heart of Vasquez’s appeal, but we will put them aside for the moment as we consider the other issues raised on Vasquez’s appeal.

We begin with Vasquez’s claim that the judge should have precluded the government from introducing his prior drug conviction to show his knowledge and modus operandi pursuant to Rule 404(b). We review the judge’s ruling for an abuse of discretion. United States v. Conley, 291 F.3d 464, 472 (7th Cir.2002). We will reverse only if the record contains no evidence on which the judge rationally could have based his ruling. Id.

Rule 404(b) provides that evidence of prior acts is admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” but not “to prove the character of a person in order to show action in conformity therewith.” Fed.R.Evid. 404(b). We apply a four-part test to decide whether Rule 404(b) evidence was properly admitted and will find no error if:

(1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the evidence has probative value that is not substantially outweighed by the danger of unfair prejudice.

United States v. Vargas, 552 F.3d 550, 554 (7th Cir.2008).

Here, the government introduced Vasquez’s prior conviction to show that he had previously carried out a cocaine deal with Perez using a hidden compartment in a car. The evidence was not used to show propensity, but rather to show modus operandi. United States v. Montoya, 891 F.2d 1273, 1285 (7th Cir.1989) (upholding admission of evidence under a modus operandi theory when prior drug offense involved the defendant working with the same person, using a car registered to another person, and using a hidden compartment in the car).

The prior drug deal with Perez was certainly important as it showed that Vasquez’s position that he was merely an innocent bystander was a smoke screen. See United States v. Chavis, 429 F.3d 662, 668 (7th Cir.2005) (evidence of a prior drug conviction is admissible when a defendant claims that he was “simply in the wrong place at the wrong time”); Vargas, 552 F.3d at 555-56 (evidence that defendant had previously transported narcotics in a trailer made it more likely that he knew about the drugs hidden in the trailer in the instant case, and less likely that he was an innocent victim).

Finally, limiting “instructions ‘are effective in reducing or eliminating any possible unfair prejudice from the introduction of Rule 404(b) evidence.’ ” United States v. Jones, 455 F.3d 800, 809 (7th Cir.2006) (internal citations omitted). Here, the judge properly instructed the jury regarding the purposes for which the Rule 404(b) evidence was introduced.

Therefore, the introduction of Vasquez’s prior conviction clearly passes the admissibility test. It was admissible to show Vasquez’s knowledge, intent, absence of mistake and modus operandi. The judge did not abuse his discretion in admitting the 2002 cocaine-related conviction.

Next, Vasquez argues that the judge should have granted his motion to suppress the money discovered during the search of the Bonneville. He argues that the police violated his Fourth Amendment rights when they conducted a warrantless search of the car after he was taken into custody. We review a district judge’s denial of a suppression motion under a dual standard: “the Court reviews legal conclusions de novo and findings of fact for clear error.” United States v. Jackson, 598 F.3d 340, 344 (7th Cir.2010).

The search issue is a dead-bang loser. For one thing, the Bonneville was abandoned, and it’s hard to see, under the circumstances here, how Vasquez could argue with a straight face that he maintained an expectation of privacy in it after he ditched it and bolted off on the run. On top of that, it’s clear that the pursuing police had abundant probable cause to believe that drug money was in the car. What was the probable cause? Well, (1) Cruz told Diaz that Vasquez and Perez had the money with them; (2) no money was found during the searches of Vasquez and Perez; and (3) two drug-detection dogs indicated that there were narcotics in the passenger-side dashboard of the car. The motion to suppress was properly denied.

Vasquez also claims that the judge denied him a meaningful opportunity to cross-examine Agent Chupik, in violation of his Sixth Amendment right to confront witnesses against him. “Limitations on cross-examination rise to the level of a Sixth Amendment violation when they prevent the exposure of a witness’ bias and motivation to lie.” United States v. Smith, 308 F.3d 726, 738 (7th Cir.2002). But the right to cross-examination is not without limitation:

[Tjrial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.

Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). A Sixth Amendment violation occurs when the defendant shows that he was denied the opportunity to elicit testimony that would be “relevant and material to the defense.” United States v. Williamson, 202 F.3d 974, 979 (7th Cir.2000) (internal citation omitted). In this case, the judge found that the information Vasquez hoped to elicit from Agent Chupik, which Vasquez argues shows bias, was trivial and a collateral issue, and therefore not relevant. We review the judge’s ruling for abuse of discretion. Id.

Vasquez argues that the judge erred by refusing to allow his counsel to attempt to impeach Agent Chupik with a supposedly inconsistent statement he made in an affidavit. Specifically, when discussing the calls between Cruz and Diaz, Agent Chupik said in his affidavit that there were “customers.” In fact, the calls only refer to a single customer. The government points out, however, that in the rest of the affidavit, Agent Chupik refers to a single customer, undercutting Vasquez’s argument that Agent Chupik was deliberately lying. If anything, it suggests that Agent Chupik simply misspoke. Moreover, Agent Chupik’s affidavit was based on a draft transcript that had been translated from Spanish to English, and neither the draft transcript nor the affidavit were presented to the jury.

It is within the discretion of a trial judge to limit cross-examination, especially when, as here, the discrepancies are minor. See United States v. Mojica, 185 F.3d 780, 788-89 (7th Cir.1999) (district court did not abuse discretion in limiting cross-examination of a witness regarding prior drug use when the inconsistencies were “no more than minor discrepancies”). Thus, the judge did not abuse his discretion when he limited Vasquez’s cross-examination of Agent Chupik.

Vasquez also argues that the judge erred in ruling that the he could not use transcripts to refresh Agent Chupik’s memory. The Government acknowledges that this was an error, but responds that it was harmless because the judge ruled irrelevant the point on which Vasquez was trying to refresh Agent Chupik’s memory. Evidentiary rulings are reviewed for an abuse of discretion. United States v. Schalk, 515 F.3d 768, 774 (7th Cir.2008).

Vasquez is correct — the judge incorrectly stated that there was “no basis to cross-examine with respect to something not in evidence.” A document does not need to be “admissible as substantive evidence in order to be used for the purposes of impeaching a witness (or refreshing his recollection).” Pecoraro v. Walls, 286 F.3d 439, 444 (7th Cir.2002). But the government is correct that it is within the judge’s discretion to preclude counsel from refreshing a witness’ memory on a point the judge has ruled trivial and a collateral issue. Therefore, while the judge’s ruling was in error, it was harmless error at best in this case.

Finally, we turn to Vasquez’s primary argument, the resolution of which is where we part company with our dissenting colleague. Vasquez asserts that the district judge erred in several respects regarding the recalling of Marina as a witness in the government’s rebuttal case and, more importantly, in admitting into evidence the Metropolitan Correctional Center (MCC) recordings of her telephone conversations with her husband.

There’s no doubt that Vasquez’s trial would have been cleaner had Marina Perez not been injected into the show. But to put things in perspective, it’s best to step back for a moment and look at the big picture. Joel Perez and Cruz pled guilty to the charges against them. Vasquez, however, elected to go to trial. Instead of relying on a generalized defense — that the government failed to prove his guilt beyond a reasonable doubt — Vasquez elected to offer something in the nature of an actual affirmative “defense” on the merits. It would be that he was only an innocent bystander who just happened to be in the wrong place at the wrong time. In the real world of criminal court trials, that sort of “defense” is difficult to sell. And it’s especially hard to sell when a defendant, like Vasquez here, elects not to take the stand and tell the jury his version of how he just happened to be where the drug deal was about to go down. So how does he get this “defense” before the jury? Enter Marina. She was his only hope, and a slim one at that.

When called by Vasquez as a witness, Marina said that her husband, earlier in the day, asked her to pick him up at the place where the drug deal died. But later, she asked Vasquez to go in her place. He agreed, and he took the Bonneville, rather than his own car, only because it was more convenient to do so. So if believed, the jury might think that Vasquez had no idea a drug deal was in play and that he just showed up by pure happenstance with a car full of cash stashed away in a hidden compartment. The if is a mighty big if, especially when one considers that the jury knew that Vasquez had participated in a remarkably similar drug deal involving cocaine, Perez, some $15,000 in cash, and a car in 2002.

The government obviously thought Marina’s tale was a fish story. Based on the way the case stood at the time, the government could have let Marina leave the stand after a short cross-examination. That might have been the safest course to take. But instead, the government filed a motion to continue the trial over the weekend based on recordings it had obtained of telephone conversations between Marina and her husband, who was incarcerated at the MCC at the time. The government argued that the conversations between the two went directly to the truthfulness and accuracy of Marina’s testimony and raised potential conflict-of-interest issues. Vasquez’s counsel objected to the government’s motion to no avail. The judge held that the MCC recordings were admissible as extrinsic evidence of Marina’s interest, bias and prejudice, and of her prior inconsistent statements.

When the trial resumed, the government called Marina in its rebuttal case and published four recorded conversations between her and her husband. During questioning, Marina acknowledged that she had met with Vasquez’s lawyer several times before August 20, 2009 (the only meeting she mentioned in her direct testimony). She also admitted that she understood that Vasquez’s lawyer could get Perez a lower sentence and that the lawyer wanted Perez to enter a plea and avoid implicating Vasquez. Defense counsel’s objection to Marina’s testimony was overruled. And then the MCC recordings came in. They included this exchange:

Marina: So what’d Beau [Vasquez’s lawyer] tell him [Vasquez]? What did Beau tell him?

Perez: A blind plea would be good, then he can guarantee this and that. You know what I mean? Just certain things, you know? I got to explain to you.

Marina: He’s telling him about a blind plea also?

Perez: Yeah, he is. I gotta explain to you. You know what I mean. He says, if you want, have his wife talk to me, this or that. I have to explain to you tomorrow.

The jury also heard Marina tell her husband that Vasquez’s lawyer also said “everybody is going to lose” if they go to trial.

Vasquez argues that the judge abused his discretion in allowing the government to recall Marina during its rebuttal case solely for the purpose of impeachment. He is correct that “a party may not call a witness for the sole purpose of impeaching him.” United States v. Giles, 246 F.3d 966, 974 (7th Cir.2001). But Rule 611 gives the district court authority to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... make the interrogation and presentation effective for the ascertainment of the truth.” Fed R. Evid. 611. Furthermore, the judge has “broad discretion to determine whether the government’s evidence [falls] within the proper scope of rebuttal.” United States v. Liefer, 778 F.2d 1236, 1249 n. 11 (7th Cir.1985) (no error when court allowed government to recall two defense witnesses as government rebuttal witnesses).

Here, the government recalled Marina after it discovered the recorded conversations because it believed that they proved she was biased. Vasquez argues that the judge abused his discretion in allowing the government to recall Marina because it had an opportunity to cross-examine her previously. But there is no authority for the odd proposition that allowing a party to recall a witness based on new information is an abuse of discretion. The government sought to introduce evidence that one of Vasquez’s main witnesses was biased. The judge did not abuse his discretion in allowing the government to recall Marina for this purpose.

Second, Vasquez argues that the MCC recordings were inadmissible hearsay. Extrinsic evidence of a witness’ bias, however, is admissible to impeach that witness and is never a collateral issue. United States v. Lindemann, 85 F.3d 1232, 1243 (7th Cir.1996). In the recordings, Marina says she talked with Vasquez’s counsel several times about the future of both Vasquez and her husband, and that she believed counsel could help her husband get a lower sentence. The government offered the recordings to prove that Marina had an incentive to lie — to get her husband a lower sentence. Moreover, when the government questioned Marina about the calls, her answer supported the government’s theory:

Government: And you thought that the defendant’s attorney was recommending that your husband enter a plea where he did not admit the role of Alexander Vasquez, isn’t that right?

Marina Perez: Where [Perez] did not admit, yes, because [Vasquez] is going to trial.

Accordingly, Marina’s testimony and the MCC recordings were admissible as extrinsic evidence to show Marina’s bias and interest in trying to get her husband a lower sentence.

The recordings are also admissible as prior inconsistent statements. Vasquez argues that prior inconsistent statements must be “in fact inconsistent” under Federal Rule of Evidence 613. United States v. Crovedi 467 F.2d 1032, 1037 (7th Cir.1972). But “two statements need not be diametrically opposed to be inconsistent.” United States v. Jones, 808 F.2d 561, 568 (7th Cir.1986). Here, the government argued that Marina’s statements to her husband — that he and Vasquez were in trouble and likely to be convicted — is arguably inconsistent with her story that it was her idea that Vasquez took the Bonneville on the day of the deal. While there may well be other ways to look at this situation, we do not believe that the judge abused his discretion in permitting her to be questioned on the point.

The admission into evidence of the MCC recordings themselves, however, is a horse of a different color. The government argues that the judge did not err because it never sought to admit the recordings for their truth. But the government’s argument ignores the fact that the judge said, without question, that “[w]ith respect to interest, bias, and prejudice ... if any of these statements can be interpreted as such to indicate an interest, bias or prejudice, they would go in for their truth.” (emphasis added). Vasquez is correct — on this point, the judge made the wrong call. But Vasquez gets no traction on this point if the error in admitting the MCC recordings for their truth was harmless. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “The test for harmless error is whether, in the mind of the average juror, the prosecution’s case would have been ‘significantly less persuasive’ had the improper evidence been excluded.” United States v. Emerson, 501 F.3d 804, 813 (7th Cir.2007). On appeal, the burden lies on the government to prove that a reasonable jury would have reached the same verdict without the challenged evidence. United States v. Williams, 493 F.3d 763, 766 (7th Cir.2007).

Looking at the evidence as a whole, although the issue is close, we believe that the error was harmless. What was the evidence? We start with Vasquez’s flight as possible evidence of guilt. While we agree with our dissenting colleague that flight evidence must be viewed with caution, United States v. Robinson, 161 F.3d 463, 469 (7th Cir.1998), we think it’s important to note that there are degrees of flight. A defendant walking down a street who runs into a yard and then into a house after he hears an officer say, “Stop, police” is one thing. The flight here goes far beyond that. If there were degrees of flight, what happened here would be flight in the first degree. How else do you describe throwing the Bonneville into reverse, endangering officers (recall that Agent Chupik, with gun drawn, had to jump out of the way), hitting two police squad cars, and gunning it the wrong way into a roadway from the parking lot, ditching the car a few moments later and trying to escape by running through the kitchen and out the back door of a McDonald’s?

Add to that, we have the cell phone logs showing several Perez Vasquez contacts leading up to the aborted deal and Vasquez saying to Cruz “tell him we got the money here.” And then there’s the striking similarity between this caper and the one (also with Perez) that lead to Vasquez’s drug conviction in 2002. The $23,000 in cash found in the hidden compartment of the Bonneville (recall $15,000 was hidden in the car during the 2002 deal) puts a little frosting on the cake. This evidence, we believe, would have moved the jury to convict Vasquez without a nudge from anything it heard in the government’s rebuttal case.

For these reasons, the judgment of the district court is Affirmed.