United States v. Francisco Bermea-Boone ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1582
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
F RANCISCO J. B ERMEA -B OONE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:04-cr-00672-2—Harry D. Leinenweber, Judge.
A RGUED F EBRUARY 26, 2009—D ECIDED A PRIL 23, 2009
Before B AUER, K ANNE and SYKES, Circuit Judges.
B AUER, Circuit Judge. Francisco Javier Bermea-Boone
was convicted of conspiring to possess with intent to
distribute and to distribute more than five kilograms of
cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846; and
attempting to possess with intent to distribute more
than five kilograms of cocaine in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2. The district court sentenced
him to 204 months’ imprisonment. On appeal, Bermea-
Boone challenges his conviction and sentence, claiming
that the district court erred by: (1) denying his motion
2 No. 08-1582
for a mistrial after the jury heard allegedly prejudicial
hearsay comments; and (2) applying a two-level sentence
enhancement for obstruction of justice. For the following
reasons, we affirm.
I. BACKGROUND
In July 2004, Bermea-Boone arranged for a large
quantity of cocaine to be driven to Chicago by truck driver
Juan Garcia. On July 25, 2004, Garcia was traveling on
Interstate 44 in Missouri en route to his destination when
he encountered a series of signs that read, “checkpoint
ahead” and “drug dogs in use.” Phelps County Deputy
Sheriff David Rightnowar observed Garcia’s truck exit
the interstate after passing these signs. As Garcia reached
the exit ramp, he ran a stop sign, turned the truck around,
and merged back onto the interstate traveling in the
opposite direction. Garcia’s curious actions and traffic
violation prompted Rightnowar to stop the vehicle.
Following a brief conversation, Garcia consented to the
search of his truck. Aided by the use of a drug-detecting
dog, Rightnowar and another officer discovered fifty-six
bundles of cocaine under the truck’s sleeper bunk. After
being placed under arrest and advised of his rights,
Garcia agreed to cooperate with the officers in a con-
trolled delivery of the cocaine.
The following day, under the supervision of officers,
Garcia placed a recorded call to Bermea-Boone and ar-
ranged to deliver the cocaine near a Burger King restaurant
off Interstate 57 in Monee, Illinois. During the call, the men
made several references to “the ladies.” Later, at trial,
Robert Coleman, a law enforcement expert in narcotics
No. 08-1582 3
trafficking, explained how cocaine dealers commonly use
words like “ladies” to describe cocaine in order to avoid
detection.
Before Garcia departed, officers fitted him with a body
recording apparatus known as a “Kel” device and
replaced the seized cocaine with “sham” cocaine. By early
that evening, Garcia and Bermea-Boone had arrived at the
Burger King parking lot. Unbeknownst to Bermea-Boone,
officers were also in attendance, positioned to monitor
the planned transaction.
Bermea-Boone was accompanied by three other men;
they arrived in two cars: a green Dodge and a grey Nissan.
Detective Richard J. Sperando saw Bermea-Boone exit
the Dodge with a man later identified as Orlando Martinez
Navarro. The men met Garcia in the parking lot and they
entered the restaurant together. Officers then observed a
man later identified as Francisco Morales-Cabrera get
out of the Nissan and enter the Burger King; another
man, later identified as Abel Gutierrez-Jiminez, remained
in the car.
Inside the restaurant, Bermea-Boone told Garcia that
someone would follow Garcia to the truck to make the
transfer of the bundles of cocaine. Moments later, Garcia
and Morales-Cabrera left the restaurant together. Garcia
walked to his truck and stood by the passenger door. After
Morales-Cabrera got in the Nissan, Gutierrez-Jiminez
drove the car closer to the passenger side of the truck.
There, Garcia handed Gutierrez-Jiminez three large bags
containing the “sham” cocaine, which Gutierrez-Jiminez
began putting inside the car’s trunk. As he did, the
officers approached and arrested all five men.
4 No. 08-1582
At trial, a Verizon Wireless representative testified
that between July 24 and July 26, 2004, seventeen tele-
phone calls took place between the cellular numbers of
Bermea-Boone and Garcia. A Drug Enforcement Agent
(DEA) was called to testify regarding his role in supervis-
ing telephone calls sent and received by Garcia. Bermea-
Boone also testified at trial. According to his version of
events, he was driving to Chicago with Martinez
Navarro and Garcia to purchase pickup trucks for a new
business.
The jury found Bermea-Boone guilty, and the district
court sentenced him to 204 months’ imprisonment, which
included a two-level sentence enhancement for obstruc-
tion of justice.
II. DISCUSSION
Bermea-Boone makes two arguments on appeal: (1) that
the district court erred in denying his motion for a
mistrial after the jury was prejudiced by improper hear-
say comments; and (2) that the district court erred in
finding that Bermea-Boone obstructed justice by pro-
viding perjured testimony, which resulted in a two-level
enhancement of his sentence. We address them in turn.
A. Mistrial
We begin with Bermea-Boone’s contention that the
district court should have granted a mistrial after the jury
was allowed to hear several statements concerning the
cocaine transaction that were attributed to Garcia.
No. 08-1582 5
Although Garcia initially agreed to cooperate with the
government, he later reversed course and decided against
it, making him unavailable as a witness for the prosecu-
tion. Bermea-Boone takes issue with three statements
attributed to Garcia and argues that each constituted a
violation under Crawford v. Washington, 541 U.S. 36 (2004),
because they were testimonial statements made by an out-
of-court declarant who was unavailable for cross-examina-
tion.
We review the district court’s denial of a motion for a
mistrial for an abuse of discretion. United States v. Prieto,
549 F.3d 513, 521 (7th. Cir. 2008). “Our review is highly
deferential because the trial judge is in the best position
to determine the seriousness of the incident in question,
particularly as it relates to what has transpired in the
course of the trial.” United States v. Danford, 435 F.3d 682,
686 (7th Cir. 2006) (internal quotation marks and citation
omitted). The essential inquiry is whether Bermea-Boone
was deprived of a fair trial. Id.“Crawford addressed the admission of testimonial
hearsay in criminal trials, holding that the Sixth Amend-
ment’s Confrontation Clause bars the admission of such
testimonial statements unless the declarant is unavailable
and the defendant had a prior opportunity for cross-
examination.” United States v. Tolliver, 454 F.3d 660, 664-65
(7th Cir. 2006).
The first statement challenged by Bermea-Boone is
contained in the testimony of DEA agent Robert A. Rodri-
guez, who testified regarding his role in supervising
6 No. 08-1582
telephone calls sent and received by Garcia. To explain
how the DEA monitored the telephone call that Garcia
placed to Bermea-Boone to arrange the delivery of
cocaine, Rodriguez discussed what Garcia had told him.
Rodriguez stated, “At approximately 2:45 p.m. that
afternoon outside of the Peotone Police Department,
I observed Garcia place a phone call to an individual, he
said to Mr. Bermea-Boone, Javier Boone, he said”—at this
point defense counsel objected.
The district court immediately ordered that the state-
ment be stricken from the record; Bermea-Boone moved
for a mistrial. The district court denied the motion, but
twice admonished the jury to disregard the statement,
first while Rodriguez was on the witness stand, and again
at the conclusion of the trial.
Bermea-Boone contends that the statement so prej-
udiced his trial that a mistrial was required and the
district court’s refusal to do so was an abuse of discretion.
Absent a showing to the contrary, this Court presumes
that the jury limited its consideration of testimony in
accordance with the trial court’s instruction. United States
v. Mallet, 496 F.3d 798, 802 (7th Cir. 2007). Here, although
the statement was improper, it was immediately treated
as such by the district court. The jury was instructed, not
once, but twice, to disregard Rodriguez’ brief mention
of Garcia. We have no reason to question the jury’s ability
to follow the limiting instructions. In our view, it is clear
that whatever the error, it was cured by the district
court, and the court properly denied Bermea-Boone’s
motion for a mistrial.
No. 08-1582 7
Bermea-Boone also argues that his right to confront
the witnesses against him was violated when the district
court admitted transcripts produced from the tape re-
cordings of two conversations involving Bermea-Boone
and Garcia when Garcia was not available for cross-
examination.
Before trial, the government filed motions in limine
seeking to introduce two conversations involving Bermea-
Boone on the grounds that the statements were in fur-
therance of the conspiracy and were his own admissions.
The government argued that the conversations, which
also involved Garcia, were not hearsay and were admissi-
ble for context. Over Bermea-Boone’s objection, the
district court admitted the transcripts of two recorded
conversations: a telephone conversation between Bermea-
Boone and Garcia on July 26, 2004; and the in-person
conversation among Bermea-Boone, Garcia, and another
co-conspirator captured by the Kel device during the
drug delivery. Each conversation had been translated
from Spanish to English. During trial, the district court
again overruled Bermea-Boone’s Crawford objections to
the admission of the transcripts.
Defense counsel then moved for a mistrial. The district
court denied the motion and cautioned the jury:
Ladies and gentlemen, the statements that are being
made are alleged to have been made by Mr. Garcia
and Mr. Navarro [sic] and are not being offered for
the truth. For example, anything they said in there is
[sic] not facts that you should consider when deter-
mining the issues in the case. What they’re being
offered for is to provide context so that the statements
8 No. 08-1582
alleged to have been made by Mr. Bermea-Boone, the
defendant, so that you can understand why the state-
ments—what they meant.
Bermea-Boone claims on appeal that each of the state-
ments were Crawford violations; he argues that the district
court’s failure to keep out the prejudicial statements
or grant a mistrial after the jury had heard them
amounted to an abuse of discretion. We disagree. Crawford
only covers testimonial statements offered to establish
the truth of the matter asserted. Tolliver, 454 F.3d at 666.
Here, Garcia’s statements were not offered for their
truth, but to provide context for Bermea-Boone’s admis-
sions concerning the drug conspiracy and to make those
admissions intelligible for the jury. “It is well-settled that
statements that are offered for context, and not for the
truth of the matter asserted, are not hearsay as defined
in Rule 801 of the Federal Rules of Evidence.” United States
v. Macari, 453 F.3d 926, 941 (7th Cir. 2006). Where there
is no hearsay, the concerns addressed in Crawford do not
come in to play. That is, the declarant, Garcia, did not
function as a witness against the accused and the admis-
sion of his statements did not offend the Confrontation
Clause. See Tolliver, 454 F.3d at 666.
B. Sentence Enhancement
Finally, Bermea-Boone argues that there was insuf-
ficient evidence for the district court to apply a two-level
enhancement to his sentence for obstruction of justice.
Whether Bermea-Boone obstructed justice is a factual
determination that enjoys a presumption of correctness
No. 08-1582 9
under the clearly erroneous standard. United States v.
Hickok, 77 F.3d 992, 1006 (7th Cir. 1996) If a sentencing
court finds, by a preponderance of the evidence, that the
defendant “willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice
during the investigation, prosecution, or sentencing of
the instant offense,” it is permitted under the Sentencing
Guidelines to enhance a defendant’s offense level by two
points. Id. (quoting USSG § 3C1.1). It is well-settled that
perjury is an example of conduct that warrants an en-
hancement for obstruction of justice. Id. One commits
perjury if, while under oath, he “gives false testimony
concerning a material matter with the willful intent to
provide false testimony, rather than as a result of confu-
sion, mistake, or faulty memory.” Id. at 1007 (quoting
United States v. Dunnigan, 507 U.S. 87, 94 (1993)).
The district court found that Bermea-Boone perjured
himself by providing false testimony at trial, but Bermea-
Boone argues that there was insufficient evidence to
conclude that he did so willfully. He contends that his
statements denying knowledge of the presence of cocaine
in the truck and participation in the drug conspiracy can
be attributed to a “muddled” recollection of events.
Bermea-Boone testified that he was a retired bus driver
who traveled to Chicago to buy pick-up trucks; Garcia
came along on the trip to help him in this pursuit. If these
claims seem to strain reason, the in-court explanations
that Bermea-Boone gave for his incriminating cellular
telephone records openly defy it. The record revealed a
series of calls made to Garcia’s phone on the date of his
arrest and the days preceding it. According to Bermea-
10 No. 08-1582
Boone, these calls to Garcia were not made to arrange the
logistics of the cocaine transaction, but “just to see how he
was doing, how things were going for him.” As explana-
tion for the fact that his phone was not registered in his
own name, Bermea-Boone stated that his friends in
Atlanta acquired it for him at a special rate. Moreover,
Bermea-Boone claimed that he lived in Mexico, yet his
cellular telephone records did not reveal one call made
from Mexico during the month prior to his arrest.
It is true that not every instance of false testimony under
oath warrants an obstruction-of-justice enhancement.
United States v. Ellis, 548 F.3d 539, 545 (7th Cir. 2008). A
simple denial of guilt, for instance, cannot serve as the
basis for such. Hickok, 77 F.3d at 1007. Bermea-Boone’s
fanciful “recollection” of events, however, went well-
beyond mere denial of guilt; rather, he provided elaborate,
detailed, and deliberate mistruths concerning material
facts of the drug conspiracy. Bermea-Boone’s testimony
was material because it went to the heart of the question
before the jury: whether he knowingly participated in the
drug conspiracy and attempted to possess with intent to
distribute more than five kilograms of cocaine.
Moreover, his false statements cannot be explained away
by a “muddled” memory of events. Bermea-Boone testified
that it was “in no way, no way” his voice on either tape
recording introduced at trial. In convicting Bermea-Boone,
the jury clearly believed that it was. Bermea-Boone’s
attestations to the contrary were lies. Having determined
that Bermea-Boone willfully gave false testimony, the
district court applied the obstruction of justice enhance-
ment. There is no clear error in this decision.
No. 08-1582 11
For the reasons set forth above, we A FFIRM Bermea-
Boone’s conviction and sentence.
4-23-09