United States v. Bolivar, Miguel ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4309
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MIGUEL BOLIVAR,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04-CR-925-5—James B. Zagel, Judge.
____________
ARGUED NOVEMBER 2, 2007—DECIDED JULY 8, 2008
____________
Before MANION, ROVNER, and EVANS, Circuit Judges.
ROVNER, Circuit Judge. Miguel Bolivar was charged
along with his daughter and nephew with distributing
a small quantity of cocaine and also conspiring to sell a
larger amount. See 21 U.S.C. §§ 841(a)(1), 846. The daughter
and nephew pleaded guilty; she testified for the gov-
ernment and he, for the defense. The jury found Bolivar
guilty of both crimes. On appeal, he chiefly argues that
the government proved his involvement in a drug offense
different from the ones it charged. He also challenges
several evidentiary rulings. We affirm Bolivar’s convic-
tions.
2 No. 06-4309
On October 13, 2004, informant William Gaddy met
with Lupe Perez, Bolivar’s nephew, and expressed his
interest in buying cocaine from Perez. Gaddy recorded the
conversation, as he did all of his conversations with the
conspirators, over the next six days. The two men agreed
that Perez would supply Gaddy with a sample of co-
caine as a precursor to a larger transaction. During this
meeting Perez received a call on his cell phone. Gaddy
overheard the male caller promise Perez he would
show Gaddy “what it is.” Perez then handed the phone
to Gaddy, who listened as the caller encouraged him to
look at their cocaine. At the time Perez did not identify the
caller by name, but he did say he was living at the caller’s
residence. Later that day Gaddy and Perez met again.
Perez elaborated that he lived with his uncle, and he
estimated that, between the two of them, they ought to
have about 27 “keys” of cocaine in stock.
The next day Perez contacted Gaddy and said he was
sending his cousin to deliver a sample of cocaine. A
short time later Bolivar’s daughter, Michelle Bolivar,
delivered about two grams. She identified herself to
Gaddy as Perez’s cousin, and said that Perez’s uncle
was her father, Miguel Bolivar. Michelle, who revealed
that she did not get along with her father, warned Gaddy
not to tell Bolivar they had met because she feared that
Bolivar would harm them both if he knew she was in-
volved in a drug deal. Michelle mentioned that Perez
had not invited her inside the location where she picked
up the sample, which led her to believe that her father
was at that location.
On October 15, Gaddy spoke to Perez by telephone and
pressed him to proceed with the main delivery. Gaddy
demanded to speak to Perez’s uncle, and Perez gave him
No. 06-4309 3
Bolivar’s telephone number. Gaddy called and arranged
to meet Bolivar. Later that day surveillance agents
watched the meeting and listened to the conversation as
it was being broadcast (and recorded) by equipment
concealed on Gaddy. Bolivar said he no longer had any
of the cocaine he possessed when he discussed the deal
with Perez a few days earlier. The last of the good stock,
Bolivar explained, was the “picture” he had given to Perez
to pass along to Gaddy. Bolivar added that he and Perez
did have inferior cocaine that Gaddy could buy, but he
said he would prefer to supply Gaddy with high-quality
cocaine and asked him to be patient. When Gaddy re-
plied that he did not want to wait, Bolivar reassured him
that “we gonna deal,” and told him that Perez was out
talking to their suppliers.
Over the next several days, Gaddy continued negotiating
by telephone with Perez, Michelle Bolivar, and one of
Michelle’s friends, Erika Musgraves. Perez and the two
women promised to procure five kilograms of cocaine
from one of their suppliers, “Claudia,” and to deliver the
drugs to Gaddy the night of October 19. On that evening
Perez, Michelle, and Musgraves delivered one kilogram
and were promptly arrested by surveillance agents.
Musgraves led the agents to four more kilogram bricks
concealed in Perez’s van.
Bolivar was arrested at his residence in January 2005.
The agents seized his cell phone and a digital scale cov-
ered with cocaine residue. After Miranda warnings,
Bolivar told the agents he knew about large quantities
of drugs coming from Mexico, but was hesitant to co-
operate because the dealers were dangerous, particularly
since rumors that Michelle was helping the DEA had cir-
culated widely. Bolivar, however, never assisted the
government.
4 No. 06-4309
Bolivar, Perez, Michelle, and Musgraves were charged
with conspiring to possess and distribute cocaine begin-
ning on October 13, 2004, and continuing until October 20.
All but Musgraves also were charged with distributing
the cocaine sample on October 14, 2004. Perez and
Michelle both pleaded guilty to the conspiracy charge.
Bolivar and Musgraves proceeded to trial together.
Before trial the government proffered its conspiracy
evidence to support the conditional admission of cocon-
spirator statements under Federal Rule of Evidence
801(d)(2)(E). The government did not intend to call
Gaddy as a witness, so most of those statements would
be introduced through the conversations he recorded. The
government asserted that the recorded conversations
evidenced Bolivar’s participation in a conspiracy with
Perez, Michelle, and Musgraves to sell drugs to Gaddy.
Bolivar responded that none of the conversations should
be admitted because, he insisted, the government’s prof-
fer did not evidence a conspiracy even under the prepon-
derance standard applicable in making a threshold deter-
mination of admissibility. See United States v. Stotts, 323
F.3d 520, 521 (7th Cir. 2003). Bolivar also singled out the
conversation on October 13, 2004, among Perez, Gaddy,
and the male caller whom Perez did not identify by
name. That conversation could not be admitted, Bolivar
insisted, because the government could not identify the
voice of the person who called Perez’s cell phone and
spoke to Gaddy. Bolivar added that the “uncle” Perez
referred to in his second conversation with Gaddy on
October 13 could be anyone, and he emphasized that it
was Claudia who supplied the kilograms of cocaine that
Perez, Michelle, and Musgraves set out to deliver to Gaddy
on October 19. The government assured the court that
No. 06-4309 5
the transcript it would give to the jury for the first Octo-
ber 13 conversation would identify the caller only as an
“unidentified male.” The district court ruled that the
government’s proffer was sufficient to support the con-
ditional admission of the recorded coconspirator state-
ments.
The government also introduced Bolivar’s post-arrest
representation that he could provide the agents with
information about large amounts of drugs coming from
Mexico. Bolivar objected that his statement was not rele-
vant to the charged conspiracy and thus constituted “bad
acts” evidence that should be excluded under Federal
Rule of Evidence 404(b). But the district court agreed
with the government that Bolivar’s statement corroborated
the connections to the drug trade he mentioned in talking
to Gaddy. Therefore, the court reasoned, the statement
was not extraneous.
After the government presented all of the recorded
conversations between Bolivar, Gaddy, Perez, Michelle,
and Musgraves, as well as Bolivar’s post-arrest state-
ment, Michelle testified for the government. On direct
examination she confirmed that she had delivered the
cocaine sample from Perez to Gaddy on October 14, and
she reiterated her recorded representation to Gaddy dur-
ing that delivery that she believed her father had been
present at the location where she picked up the sample
from Perez because he met her outside instead of inviting
her in. She also testified that on the evening of October 19
she, Perez, and Musgraves had met with a drug dealer
named Claudia and a friend of Claudia’s named Ismael
to obtain the drugs. On cross-examination, though,
Michelle displayed less certainty about her belief that
Bolivar was present when she obtained the sample from
6 No. 06-4309
Perez. She conceded that on the day she delivered the
sample she had visited Perez at the house two or three
times and had been invited inside at least once. She
could no longer remember, she said, whether she actually
obtained the drug sample during a visit in which Perez
invited her inside.
Perez, despite his guilty plea to the conspiracy, testi-
fied for the defense and denied that Bolivar had been
involved in the charged crimes. Perez said he had copied
a key to Bolivar’s house and stayed there when Bolivar
was away, but he also lived at other locations. The scale
found at this house was his, he said, and Bolivar was
unaware it was there. Perez explained that his frequent
references to his “uncle” were not references to Bolivar.
He insisted that he called several drug dealers “uncle” out
of respect, including one of Claudia’s friends. Bolivar,
he continued, was not present when Michelle came to
pick up the sample she delivered to Gaddy.
Bolivar was found guilty on both counts, and sentenced
to a total of 240 months’ imprisonment. Musgraves was
acquitted. The basic premise underlying most of Bolivar’s
arguments on appeal is that he was charged with con-
spiring with Perez, Michelle, and Musgraves to distribute
five kilograms of cocaine to Gaddy on October 19 but
the government instead proved only that he and Gaddy
were involved in a “different” transaction. In Bolivar’s
opinion, the government proved only that he is a relative
of Perez and Michelle, and that both he and Perez sold
drugs. It follows, says Bolivar, that the government may
have proved him guilty of something but not of the
charged crimes.
Bolivar timely moved for a judgment of acquittal under
Federal Rule of Criminal Procedure 29, and we review
No. 06-4309 7
the district court’s denial of that motion de novo. United
States v. Fassnacht, 332 F.3d 440, 447 (7th Cir. 2003). Boli-
var’s sufficiency claim fails if we conclude, after re-
viewing the evidence in the light most favorable to the
government, that a rational jury could have found him
guilty of the charged crimes beyond a reasonable doubt.
See United States v. Jenkins, 419 F.3d 614, 617 (7th Cir. 2005);
Fassnacht, 332 F.3d at 447. To prove Bolivar guilty on the
conspiracy count, the government had to show that he
embraced a common objective to sell drugs to Gaddy
with another member of the conspiracy; the government
was not required to establish that Bolivar participated
in every aspect of the scheme, or that he knew all of the
members. See United States v. Womack, 496 F.3d 791, 795
(7th Cir. 2007); United States v. Jones, 275 F.3d 648, 652 (7th
Cir. 2001). The essence of a drug conspiracy is the agree-
ment itself. United States v. Shabani, 513 U.S. 10, 16 (1994);
United States v. Thomas, 284 F.3d 746, 751 (7th Cir. 2002). As
for the charge of possession with intent to distribute,
the government had the burden to prove that Bolivar
had the “authority to possess and determine the disposi-
tion” of what he knew to be a controlled substance.
See United States v. Orozco-Vasquez, 469 F.3d 1101, 1106 (7th
Cir. 2006).
The evidence is compelling. The audio recording of the
face-to-face meeting between Bolivar and Gaddy on
October 15 provided all of the evidence necessary to
confirm Bolivar’s participation in both the conspiracy
and the substantive distribution. During that meeting
Bolivar stated unequivocally that he was the source of
the two-gram sample delivered to Gaddy the day before,
and he emphatically assured Gaddy that the two of them
were “gonna deal.” Bolivar said he was momentarily out
8 No. 06-4309
of the high-grade cocaine represented by the sample, but
he promised that Perez was going to find more. Thus,
Bolivar’s own words prove that he was working with
Perez and the others to distribute cocaine, and whether
the larger quantity delivered on October 19 passed
through his hands enroute from one of their suppliers
to Gaddy is wholly irrelevant. The relevant inquiry is
whether Bolivar embraced the common scheme to distrib-
ute cocaine with Perez and the others, not whether he
owned or was the original source of the drugs they distrib-
uted. See Shabani, 513 U.S. at 16; Thomas, 284 F.3d at 751.
Our resolution of the sufficiency claim also resolves two
others. Bolivar contends that there was a fatal variance
between the crimes charged and the crime that the gov-
ernment proved at trial. But we treat a claim of fatal
variance the same as an attack on the sufficiency of the
evidence, United States v. Hewlett, 453 F.3d 876, 879 (7th Cir.
2006); United States v. Handlin, 366 F.3d 584, 589 (7th Cir.
2004), and, as we explained above, the jury had ample
evidence to convict Bolivar on both counts. Bolivar fur-
ther insists that there was a constructive amendment of
the indictment, but, as far as we can tell, his argument
rehashes his view that the evidence was not sufficient to
convict him of the charged conspiracy. We need not
address the same claim under a different label.
Bolivar further argues that the district court erroneously
admitted the October 13 recording that captured the
voice of the male caller whom Perez did not identify;
according to Bolivar, that recording should have been
excluded because the government declined to identify the
male caller as Bolivar. We review the district court’s
evidentiary rulings for abuse of discretion. United States v.
Emerson, 501 F.3d 804, 813 (7th Cir. 2007). If a preponder-
No. 06-4309 9
ance of the evidence supports the conclusion that the
declarant uttered a statement in furtherance of a conspiracy
in which the defendant participated, the statement is
admissible. United States v. Irorere, 228 F.3d 816, 824 n.2
(7th Cir. 2000); United States v. Johnson, 200 F.3d 529, 532-
33 (7th Cir. 2000).
Nothing prohibited the government from introducing
the recording simply because the male caller’s identity
could not be positively confirmed from the recording
alone. The recording was admissible because the caller’s
statements made evident that he was working with
Perez to advance a common goal of selling cocaine to
Gaddy; in other words, he was a coconspirator. See United
States v. Gajo, 290 F.3d 922, 928 (7th Cir. 2002). Moreover,
there was ample evidence from which a rational jury
could conclude that, indeed, Bolivar was the male caller.
Perez, who is Bolivar’s nephew, told Gaddy that he
lived with the male caller; he later told Gaddy that he lived
with his uncle; and when Gaddy asked for the uncle’s
telephone number, Perez gave him Bolivar’s. All of these
representations were contemporaneously recorded, and
at trial Perez even admitted that he sometimes stayed at
Bolivar’s residence. Unsurprisingly, as a defense wit-
ness Perez testified that Bolivar was unaware that he
stayed at Bolivar’s house, and he denied that he meant
Bolivar when he frequently referred to his “uncle” while
dealing with Gaddy. But the jury was under no obliga-
tion to believe this improbable testimony, and though
Bolivar suggests that the government violated a promise
not to imply that the unidentified caller was Bolivar, we
see no evidence of such a promise. Nor do we under-
stand Bolivar’s contention that the government should
have been foreclosed from asking the jury to draw an
10 No. 06-4309
entirely reasonable conclusion from the evidence pre-
sented; that the quality of the recording was low does not
mean that the jury could not infer from the entirety of
the evidence that Bolivar was the caller who wanted
Gaddy to see his cocaine.
Bolivar next argues that the district court, in evaluating
whether to admit various statements under the cocon-
spirator exception, see FED. R. EVID. 801(d)(2)(E), delegated
to the jury its own responsibility for making a thresh-
old determination of conspiracy. We agree with Bolivar
that the trial judge is responsible for deciding by a pre-
ponderance whether proffered coconspirator statements
are admissible, whereas the jury’s role is to determine
whether the accused is guilty of the charged crimes.
See FED. R. EVID. 104(a); Stotts, 323 F.3d at 521. But despite
Bolivar’s suggestion to the contrary, that is exactly
what happened in this case. The district court could
have—as Bolivar seems to think the court did—admitted
the proffered coconspirator statements without de-
manding pretrial disclosure of the government’s intended
evidence; that is one acceptable option as long as the
statements are admitted conditionally subject to the
government eventually establishing the underlying con-
spiracy by a preponderance. See United States v. Hunt,
272 F.3d 488, 494 (7th Cir. 2001); United States v. McClellan,
165 F.3d 535, 553-54 (7th Cir. 1999). Yet here the court
conducted a pretrial hearing specifically to determine
whether the government would be able to establish a
foundation for admission of the proffered coconspirator
statements. See United States v. Santiago, 582 F.2d 1128 (7th
Cir. 1978). The court concluded at that hearing that the
government had a foundation for admitting the statements,
and Bolivar’s contention that the court abdicated that
No. 06-4309 11
decision to the jury is plainly contradicted by the record.
In any event, our conclusion that the evidence admitted
was sufficient to convict Bolivar on the conspiracy count
beyond a reasonable doubt necessarily vindicates the
district court’s conclusion that the government had satis-
fied the more lenient standard for admission.
Finally, Bolivar argues that the district court erroneously
admitted his post-arrest statement to police because, he
insists, that statement about his knowledge of drugs
arriving from Mexico only served to prove his propen-
sity to commit bad acts. See FED. R. EVID. 404(b). But the
district court did not abuse its discretion because Bolivar’s
confession was evidence of the charged crimes, not some
other “bad acts.” See United States v. Senffner, 280 F.3d
755, 764 (7th Cir. 2002); United States v. Godinez, 110 F.3d
448, 455 (7th Cir. 1997). Bolivar had told an arresting
officer that he knew about large amounts of drugs
coming from Mexico, but he added that he was hesitant to
cooperate because rumors of Michelle’s cooperation with
the DEA had circulated widely and the drug-dealers
with whom he associated might endanger his family.
Bolivar’s statement was an admission of his deep involve-
ment in the drug trade, and his reference to drugs arriving
from Mexico corroborated the impression he gave Gaddy
during their October 15 conversation about his access to
cocaine from multiple sources. The jury knew from that
conversation that Bolivar and Perez were getting co-
caine from other suppliers, so Bolivar’s attempt to dis-
tance his confession as a reference to other, unrelated
crimes is without merit.
We therefore AFFIRM Bolivar’s convictions.
USCA-02-C-0072—7-8-08