United States v. Campos, Gustavo ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1561
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
G USTAVO C AMPOS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 156—John W. Darrah, Judge.
____________
A RGUED F EBRUARY 14, 2008—D ECIDED S EPTEMBER 3, 2008
____________
Before R IPPLE, S YKES, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Gustavo Campos was charged
with nine other defendants in a multi-count indictment
with a drug conspiracy and other drug-related crimes. A
jury convicted him as charged, and the district judge
sentenced him to a term of life imprisonment. Campos
contends on appeal that there was a fatal variance be-
tween the conspiracy charged in the indictment and the
government’s proof at trial. He also contends that the
2 No. 07-1561
district court erred in declining to give his proposed
multiple conspiracies jury instruction and in denying his
motion to suppress wiretap evidence. He challenges the
reasonableness of his sentence as well. We affirm.
I. Background
This case involves the large-scale drug-trafficking of
hundreds of kilograms of cocaine and thousands of pounds
of marijuana from Texas to Chicago from 2001 into the
early part of 2004. The trafficking had three phases, but it
involved a constant and common goal—the transportation
of large quantities of cocaine and marijuana from Texas
to Chicago for re-sale there. Another constant factor in
this situation was the guiding hand of Gustavo Campos
at the center of every aspect of the trafficking, from top to
bottom. In the first phase of operation, from the summer
of 2001 to March 2002, several trips were made to trans-
port large quantities of cocaine and marijuana from Texas
to Chicago using semi-trailers which were towed by
semi-tractors. The drugs were hidden in false compart-
ments located in the semi-trailers. In March 2002, Drug
Enforcement Agency (“DEA”) agents seized one of these
semi-trailers while en route from Texas to Chicago with
250 kilograms of cocaine. After this seizure, a second
phase began, lasting from about April 2002 to June 2003,
in which passenger vehicles including rental cars were
used to transport drugs and money. This phase ended in
June 2003, when the DEA seized a rental car after it had
been loaded with cash for a trip from Chicago to Texas;
the ensuing search led to the discovery of over $135,000
No. 07-1561 3
in hidden cash. At that point, a third, but familiar, phase
of operation began in which the use of semi-tractors/
trailers resumed as the mode of drug transportation. This
third and final phase spanned from July 2003 to February
2004. On February 10, 2004, DEA agents seized approxi-
mately 325 kilograms of cocaine from a Chicago ware-
house, bringing the operating aspects of this trafficking
to a close, and shifting the governmental scrutiny of it
from investigation to prosecution.
The evidence at trial demonstrated that the three phases
of trafficking described above constituted a conspiracy.
Campos led the conspiracy, running all aspects—financing,
recruiting, and operations—from Chicago. Felix Herrera
was the head of the conspiracy’s Texas operations. He
coordinated the loading of drugs into semi-trailers and
passenger vehicles. Martin Vasquez supervised the
semi-tractor/trailer transportation and, in many cases,
drove the passenger cars between Chicago and Texas.
Campos, Herrera, and Vasquez participated in the con-
spiracy throughout all three phases.
In 2001 Campos was looking for drivers to transport
drugs from Texas to Chicago. So he asked Vasquez, a
former trailer salesman, if he knew of a truck driver
eligible to drive in all 48 contiguous states. Vasquez
introduced Campos to Jerry Maj, the owner of Jerry’s
Advanced Trucking located in Summit, Illinois. Campos
and Vasquez met with Maj, and Campos offered Maj
$25,000 to drive a semi-tractor/trailer round trip from
Chicago to Texas, returning with drugs, specifically
marijuana. Maj accepted the offer. At about the same time,
4 No. 07-1561
Jacek (or Jack) Zelek was working as a commercial truck
driver for Maj. Zelek’s semi-tractor needed repairs, so he
asked Maj for a loan of $20,000. Maj agreed to loan Zelek
the money, if Zelek would transport drugs from Texas
to Chicago. Zelek agreed.
In or around August 2001, Campos arranged to have
the inside of the semi-trailer outfitted with a false front
wall for purposes of concealing large quantities of drugs
and cash for transportation between Texas and Chicago.
Campos offered Vasquez $5,000 to travel to Texas with
Zelek, meet with Campos’s Texas contacts, including
Herrera, and deliver money to be hidden in the trailer.
Vasquez accepted. As a result, once the customization
of the semi-trailer was finished, Campos conducted a
final inspection and placed $1,475,000 in cash behind
the false wall. The next day Zelek and Vasquez made the
trip from Chicago to Texas. Upon their arrival, Vasquez
called Campos who said that he and Zelek would be
met by a group of men whom they should follow to
another location. A short while later, Vasquez and Zelek
were approached by some men, just as Campos had
indicated. Vasquez and Zelek followed the group to a
residential area where they parked the semi-tractor/trailer.
Zelek remained in the semi-tractor while Vasquez re-
moved the false front wall from the semi-trailer and the
cash was removed. Campos repeatedly called Vasquez
to check on the status of the operation. Once their mission
was accomplished, Vasquez and Zelek returned to Chi-
cago.
Zelek made six more round trips between Chicago and
McAllen or Roma, Texas, for the conspiracy from
No. 07-1561 5
August to December 2001. On all but two, he returned
with a semi-tractor/trailer carrying drugs. Zelek was
directed to leave the semi-tractor/trailer at a particular
location, wait while the drugs and, typically vegetables,
which were used to hide the drugs, were loaded onto the
trailer, and then drive the semi-tractor/trailer back to
Chicago. Campos paid Maj $25,000 for Zelek’s first trip.
But after that, Maj demanded more money, so Campos
agreed to pay him $50,000 for each trip Zelek made for
the organization.
On December 4, 2001, DEA agents stopped Zelek’s
semi-tractor/trailer in Texas to conduct a routine inspec-
tion. They discovered 1,754 pounds of marijuana hidden
in the semi-trailer and placed Zelek under arrest. Shortly
after Zelek’s arrest, Campos began searching for a re-
placement driver. His brother, Maximino Campos, recom-
mended a commercial truck driver, Rogelio (or Roger)
Perez.1
On December 19, 2001, Maximino, acting at Campos’s
direction, offered to pay Perez to make round trips be-
tween Chicago and Texas. Perez was interested, so he
was told to meet with Campos the next day. Perez met
with Campos who told Perez that if he were a loyal
member of the conspiracy, he would make a lot of money.
At the end of the meeting, Campos offered Perez a posi-
tion with the conspiracy, which Perez accepted. Campos
told Perez that he would be in charge of transporting
1
To avoid confusion between the two brothers, we refer to
Maximino by his first name.
6 No. 07-1561
empty semi-trailers from Chicago to Texas and returning
them to Chicago loaded with drugs. After the meeting
with Campos, Perez met with Vasquez.
A while later, Perez picked up an empty semi-trailer to
haul to Roma, Texas. Vasquez gave Perez detailed driving
directions from Chicago to Texas and a phone number
with which to contact him when Perez reached Texas.
Perez drove the semi-trailer to Texas. When he arrived, he
was unable to reach Vasquez, so he called Maximino who
told him that Herrera would meet him. Perez met with
Herrera, dropped off the empty semi-trailer, and then
returned to Chicago.
In early February 2002, Campos met with Perez to ask
him to make another round trip from Chicago to Texas.
Unlike the first trip, this trip would involve transporting
drugs hidden in a semi-trailer from Texas to Chicago.
Campos offered to buy Perez a semi-tractor so he could
make multiple round trips to and from Texas. Campos
told Perez that he had a five-year contract which re-
quired him to transport six tons of cocaine from Texas to
Chicago. Campos did not follow-up on his offer to buy
Perez a semi-tractor, so Perez attempted to borrow one
from a friend. But the friend was aware of the nature of
the trip and refused to lend his semi-tractor. Campos
told Perez to offer the friend more money ($40,000), but
the friend still refused. A few days later, Campos sum-
moned Perez to a meeting at which he expressed frustra-
tion with Perez’s inability to obtain a semi-tractor. Campos
told Perez that people in Texas were waiting for him. Perez
responded that he would make one more attempt to
No. 07-1561 7
obtain a semi-tractor. He contacted law enforcement
instead.
In late February 2002, Perez, by then working with the
DEA, told Campos that he found a semi-tractor and that
his friend Willie Chester, a/k/a “Rock,” was willing to
make the round trip between Chicago and Texas, bringing
back drugs. Campos met with Rock to confirm that he
could obtain the semi-tractor and make the trip. Satisfied
with Rock, Campos paid him $9,000 in cash. Unbeknownst
to Campos, however, Rock, like Perez, had begun
working with the DEA. Rock made the round trip between
Chicago and Texas. During the trip he stayed in constant
contact with Perez who stayed in constant contact with
Campos.
On March 1, 2002, Rock, escorted by the DEA, returned
to Chicago with the semi-tractor/trailer loaded with
250 kilograms of cocaine. The DEA seized the semi-trailer,
searched it, and discovered the cocaine. When Campos
learned of the this, he called Perez to a meeting at
Maximino’s house. When Perez arrived, he was taken by
Campos and another person down to the basement. The
other man pulled out a gun and pointed it at Perez
while Campos demanded to know what happened to the
semi-trailer and where Rock lived. Campos threatened
Perez that he would be killed if the semi-trailer was not
found. Perez claimed he had nothing to do with the loss
of the semi-trailer and agreed to search for it with Campos.
After the March 1 seizure, the use of semi-tractors/
trailers was stopped in favor of using passenger vehicles
with hidden compartments, thus entering the second
8 No. 07-1561
phase of the conspiracy. Like the semi-trailers, the passen-
ger vehicles were loaded with cash in Chicago and with
drugs in Texas. Campos met with Vasquez to discuss
this new method of transportation. Beginning in June
2002, Vasquez made round trips between Chicago and
Texas in passenger vehicles. He made a total of seven
round trips, using a rental car for all but one. Campos
indicated that the cars should be rented for one week in
order to provide enough time to get the drugs from Texas
to Chicago. He instructed Vasquez to rent a Lincoln Town
Car or Mercury Grand Marquis because they had large
frames in which to easily conceal money and drugs. When
Vasquez used a rental car, Campos arranged for the
dates for the rental and for someone to transport Vasquez
to pick up the rental car at the airport. Shortly after
Vasquez drove a rental car from the lot, he was met by a
person identified by Campos to whom Vasquez turned
over the car. The car was taken away and loaded with
cash, hidden behind the dashboard. After that, which
usually took one or two days, Campos notified Vasquez
that the rental car was ready and where he could pick it
up. Vasquez picked up the car and drove it, with the
cash, to Texas.
Once Vasquez reached Texas, he called Campos, who
in turn contacted Herrera. Then the rental car was picked
up, the money removed, and the drugs were hidden
inside. This process typically lasted several days. When it
was completed, the car was returned to Vasquez who
drove it, along with the drugs, back to Chicago. On the
way, Vasquez was in telephone contact with Campos
who wanted to ensure that Vasquez was not appre-
No. 07-1561 9
hended at any checkpoint en route to Chicago. When
Vasquez arrived in Chicago, he contacted Campos who
had someone pick up the rental car so the drugs could be
removed. After this process was complete, the rental car
was returned to Vasquez who returned it to the airport
car rental. Campos paid Vasquez $5,000 per trip.
On June 10, 2003, Campos arranged to have a car
rented by Vasquez parked at a predetermined location. As
with prior trips, Vasquez went to the location as in-
structed by Campos to pick up the car but was unable
to find it. He called Campos and reported that he could not
find the car. Campos contacted the persons who had
parked the car to confirm the exact location. He did not
know that the DEA had seized the car, which contained
approximately $135,000 in cash, pursuant to a warrant.
This seizure led to the end of the organization’s use of
passenger cars to transport drugs and money—the end
of the second phase of the conspiracy.
Campos decided to return to the use of semi-tractors/
trailers to transport drugs from Texas to Chicago; thus
began the third phase of the conspiracy. Campos searched
for a driver, a semi-tractor/trailer, and a warehouse in
which to unload the drugs in Chicago. With Vasquez’s
help, Campos made contact with Joseph Bleka, the lessor
of a warehouse on 4800 S. Central Avenue, Chicago,
Illinois. Vasquez knew Bleka from his involvement in
a drug delivery Perez had made for the organization in
2002. Vasquez asked Bleka if they could use his ware-
house again. Bleka agreed.
So, beginning in July 2003, the conspirators again trans-
ported drugs from Texas to Chicago using semi-trac-
10 No. 07-1561
tors/trailers, unloading the drugs at Bleka’s warehouse.
Campos hired the individuals who transported the
drugs from Texas to Chicago. He coordinated the loading
of the drugs in Texas with Herrera and the arrival of the
drugs in Chicago with Vasquez. Campos paid Bleka $5,000
for each shipment of drugs that was unloaded in his
warehouse. On February 10, 2004, the DEA searched
Bleka’s warehouse, seizing 325 kilograms of cocaine and
3.7 kilograms of marijuana. Campos was arrested that
night, and the operations of the drug organization ceased.
A superseding indictment charged that from in or about
the summer of 2001 until on or about February 10, 2004,
Gustavo Campos, Maximino Campos, Felix Herrera,
Martin Vasquez, Joseph Bleka, and others agreed and
conspired “knowingly and intentionally to possess with
intent to distribute and to distribute controlled sub-
stances, namely, in excess of five kilograms of mixtures
containing cocaine, and in excess of 100 kilograms of
marijuana[.]” The indictment alleged that as part of the
conspiracy Gustavo Campos was the leader of a large-
scale drug distribution network based in Chicago which
was responsible for transporting cocaine and marijuana
from Texas to Chicago for redistribution. It was alleged
that the drugs were transported “in a variety of ways,
including by concealing the narcotics in over-the-road
semi-trailers and in passenger vehicles.” Gustavo Campos
was alleged to have had overall responsibility for the
conspiracy. A jury found Campos guilty as charged. He
was sentenced to a term of life imprisonment. Campos
appealed.
No. 07-1561 11
II. Discussion
Campos makes four arguments on appeal. He argues
first that there was a fatal conspiracy variance because
the government proved three distinct conspiracies at
trial instead of the single conspiracy alleged in the indict-
ment. He argues that the district court erred in declining
to give his proposed multiple conspiracies instruction.
The court also erred, he says, in denying his motion to
suppress the wiretap evidence because the government
failed to establish necessity for the wiretap. Lastly, he
challenges the reasonableness of the sentence imposed,
arguing the district court failed to properly consider the
factors in 18 U.S.C. § 3553 and erroneously dismissed
the mitigating factor of his pretrial conditions of confine-
ment. We address each of these arguments in turn.
A. Conspiracy Variance
Campos contends that there was a fatal variance between
the single conspiracy charged in the indictment and the
government’s proof of three separate conspiracies at trial.
A conspiracy variance claim is treated as a challenge to
the sufficiency of the evidence, which is reviewed under
a highly deferential standard. United States v. Thomas,
510 F.3d 714, 722 (7th Cir. 2007). We view the evidence in
the light most favorable to the government and draw all
reasonable inferences from the evidence in the govern-
ment’s favor. Id.
To overturn a conspiracy conviction based on a variance,
a defendant must show a variance between the charge
in the indictment and the evidence at trial and that he
12 No. 07-1561
was prejudiced by the variance. United States v. Womack,
496 F.3d 791, 794 (7th Cir. 2007). The question of whether
there is a single conspiracy is for the jury. Id. “ ‘Even if the
evidence arguably established multiple conspiracies,
there is no material variance from an indictment charging
a single conspiracy if a reasonable trier of fact could
have found beyond a reasonable doubt the existence of
the single conspiracy charged in the indictment.’ ” Thomas,
510 F.3d at 722 (quoting United States v. Townsend, 924
F.2d 1385, 1389 (7th Cir. 1991)).
Campos argues that the government introduced evidence
at trial of three distinct conspiracies involving three
different modes of operation, co-conspirators, objectives,
and big bosses: (1) an agreement with Vasquez, Maj, Zelek,
certain “paisas” 2 in Mexico, and others to bring large
amounts (250 to 350 kilograms) of cocaine to Chicago for
trans-shipment in the summer and fall of 2001; (2) an
agreement with Vasquez, other unknown co-conspirators,
and different paisas in Mexico to bring small amounts
(5 to 8 kilograms) of cocaine to Chicago for local shipment
in the fall and winter of 2002; and (3) an agreement with
Vasquez, Bleka, and various others to bring large amounts
(hundreds of kilograms) of cocaine to Chicago for trans-
shipment in the fall and winter of 2003-2004. However, a
reasonable jury could have found the existence of the
single, overall conspiracy to distribute substantial
2
Rogelio Perez testified that the Spanish term “paisas” referred
to fellow Mexicans, and that when Campos used the term, it
was understood to mean Mexicans involved in the drug trade.
No. 07-1561 13
amounts of cocaine and marijuana as charged in the
indictment.
Campos concedes that he and Vasquez were involved
in substantial drug activity, but he contends that there
were three similar but distinct and separate conspiracies,
even though each involved the transportation of drugs to
Chicago. However, the evidence supports a reasonable
inference that each of what Campos alleges to be distinct
conspiracies shared a common objective or purpose, “the
defining characteristic of a conspiracy.” United States v.
Thomas, 520 F.3d 729, 733 (7th Cir. 2008). That common
objective was to transport cocaine and marijuana from
Texas to Chicago for redistribution. In particular, the
evidence established that in February 2002 Campos told
Perez that he had a five-year contract requiring him to
transport six tons of cocaine from Texas to Chicago. The
fact that the means of transporting the drugs to Chicago
changed from one phase to another and back again does
not necessarily render each phase a distinct conspiracy.
See United States v. Bullis, 77 F.3d 1553, 1560 (7th Cir.
1996) (explaining that the fact that the conspirators gener-
ally changed the pricing levels each year of the con-
spiracy did not make each year a separate conspiracy);
United States v. Lynch, 699 F.2d 839, 843 (7th Cir. 1983)
(“The mere fact . . . that the methods used to perpetrate
the scheme changed slightly does not indicate that one
conspiracy has ended and that another has begun . . . .”).
Nor does the fact that the three phases of the conspiracy
involved different participants (other than Campos,
Vasquez and Herrera), turn the single conspiracy
into separate conspiracies. See Bullis, 77 F.3d at 1560
14 No. 07-1561
(“[T]urnover in the members of a conspiracy does not
transform a single conspiracy into multiple conspiracies
so long as there is a continuation of the original conspir-
acy’s purpose.”). While some participants in the conspiracy
changed, the core participants—Campos, Vasquez, and
Herrera—remained the same. The evidence allowed the
jury to find that Campos not only participated in each
of three phases of a single conspiracy, but also that he
was the leader of each stage and directed his co-conspira-
tors in each. Furthermore, the temporal separation
between each of the phases was minimal and limited to
that necessary to allow the conspirators to regroup and
change their methods used to carry out the conspiracy
in order to evade detection.
The defendant likens his situation to that in United
States v. Johnson, 515 F.2d 730 (7th Cir. 1975), where we
held that the variance between the indictment and proof
at trial required reversal of the conspiracy conviction. But
the facts in Johnson were quite different than those here.
Johnson and six others were charged with a conspiracy
to dispose of stolen motor vehicles in interstate com-
merce. Johnson participated in the purchase of three
stolen vehicles. Id. at 731. Most of the evidence at trial,
however, related to the activities of Johnson’s co-defen-
dants, including Joseph Altvare, who attempted to
dispose of six other vehicles through a used car lot. There
was no evidence that Johnson had any connection to
those vehicles, the car lot, or any of the other people
involved, except Altvare. Id. at 733. We found that the
evidence linked Johnson to only Altvare and held that
it was insufficient to establish that Johnson participated
No. 07-1561 15
in the overall conspiracy charged in the indictment. Id. at
731-33. In contrast, Campos admits that he participated in
each of the three alleged separate conspiracies. He con-
ceded “knowing all the players,” “knowing all the parts,”
and “participating in everything[.]”
Campos also sees similarities between his case and
United States v. Varelli, 407 F.2d 735 (7th Cir. 1969), in
which we held the evidence was insufficient to establish
a single overall conspiracy. Id. at 742-43. In Varelli, the
defendants were charged with a conspiracy to hijack,
carry away, and distribute interstate shipments of mer-
chandise. Id. at 741. The evidence at trial proved that
some participants were involved in hijacking silver ship-
ments and Polaroid equipment, but others were involved
only in the silver hijackings and had no discussions
about other hijackings. Id. at 743-44. The fact that the two
conspiracies had some common participants was insuffi-
cient to establish one overall conspiracy. Id. at 744. We
explained: “The conspirators in the Polaroid hijacking
did not contemplate a series of hijackings in which all
would partake. Rather, the Polaroid hijacking represented
a single transaction with a single purpose.” Id. In contrast,
here, the evidence was sufficient for the jury to find that
Campos was involved in each of the three allegedly
separate conspiracies that shared one common objective.
Furthermore, the variance in Varelli proved fatal because
the jury was not instructed that they could find multiple
conspiracies and still find the defendants guilty. Id. at 747.
Here, though, the jury was instructed that they could
find multiple conspiracies and still find Campos
16 No. 07-1561
guilty—provided the proven conspiracies were within
the charged conspiracy.
We conclude that the evidence at trial was sufficient to
prove beyond a reasonable doubt that Campos partic-
ipated in the single, overarching conspiracy charged in
the indictment. And no variance existed between the
conspiracy charged and the proof at trial: The indictment
alleged a conspiracy to transport substantial amounts
of cocaine and marijuana from Texas to Chicago for
redistribution; the evidence at trial was consistent with
these allegations.3
B. Multiple Conspiracies Instruction
Campos argues that the district court erred in refusing
to give his proposed multiple conspiracies jury instruc-
tion. A decision regarding a jury instruction is reviewed
for an abuse of discretion. United States v. Van Sach, 458
F.3d 694, 702 (7th Cir. 2006). A defendant is entitled to
an instruction on his theory of defense only if “(1) the
instruction provides a correct statement of the law; (2) the
theory of defense is supported by the evidence; (3) the
theory of the defense is not part of the government’s
charge; and (4) the failure to include the instruction
would deprive the defendant of a fair trial.” United States
v. Millet, 510 F.3d 668, 675 (7th Cir. 2007). Whether an
3
We thus do not reach the argument that the convictions on
the substantive counts should be reversed because the jury
was given a Pinkerton instruction.
No. 07-1561 17
instruction correctly states the law is reviewed de novo.
Van Sach, 458 F.3d at 702.
Campos’s proposed multiple conspiracies instruction
read:
Count One of the indictment charges that defen-
dant Gustavo Campos knowingly and deliberately
entered into a conspiracy to possess with intent to
distribute and to distribute cocaine.
In order to sustain its burden of proof for this
charge, the government must show that the single
master conspiracy alleged in Count One of the
indictment existed. Proof of separate or independ-
ent conspiracies is not sufficient.
In determining whether or not any single con-
spiracy has been shown by the evidence in the case
you must decide whether common, master, or
overall goals or objectives existed which served as
the focal point for the efforts and actions of any
members to the agreement. In arriving at this
decision you may consider the length of time the
alleged conspiracy existed, the mutual dependence
or assistance between various persons alleged to
have been its members, and the complexity of the
goal(s) or objective(s) shown.
Even if the evidence in the case shows that
Defendant Campos was a member of some con-
spiracy, but that this conspiracy is not the single
conspiracy charged in the indictment, you must
acquit Defendant Campos of this charge.
18 No. 07-1561
Unless the government proves the existence of
the single master conspiracy described in the
indictment beyond a reasonable doubt, you must
acquit defendant Campos of this charge.
The district court said that under United States v. Wilson,
134 F.3d 855 (7th Cir. 1998), this instruction was erroneous.
The experienced district judge is correct. The proposed
instruction required the jury to acquit if it found that
Campos was a member of some conspiracy, but not a
conspiracy charged in the indictment. In Wilson, we
held that it was error to instruct the jury that if the gov-
ernment fails to prove the exact conspiracy charged in the
indictment, the jury should acquit. Id. at 864-65. And we
added that such an instruction “is always inappropriate
as a matter of law.” Id. at 865. This is because the “prose-
cutor may elect to proceed on a subset of the allegations
in the indictment, proving a conspiracy smaller than the
one alleged, so long as the subset is also illegal.” Id.
(internal citation omitted).
The district court gave the following multiple conspira-
cies instruction:
If you find there was one overall conspiracy as
alleged in Count 1 and that a particular defendant
was a member of that conspiracy, you should
find that defendant guilty of Count 1.
If you find there were two or more conspiracies
and that a particular defendant was a member of
one or more of these conspiracies, you may find
that defendant guilty of Count 1 only if you further
No. 07-1561 19
find that this proven conspiracy was included
within the conspiracy alleged in Count 1. If, on the
other hand, the proven conspiracy is not included
within the conspiracy alleged in Count 1, you
should find that defendant not guilty of Count 1.
We approved of a nearly identical instruction in Wilson.
That instruction informed the jury that if it found the
defendant was a member of a conspiracy that was a sub-
part of the charged conspiracy, then it should find the
defendant guilty. Id. Here, as in Wilson, the jury’s guilty
verdict “concluded that [Campos was a] member[] of a
conspiracy and that, at a minimum, this conspiracy was
part of the single conspiracy alleged by the Government.”
Id.
Campos contends that Wilson is limited to defendants
who played a finite role in a larger conspiracy which
included parts and players unfamiliar to the defendants.
He points to no authority to support this reading, and we
are unaware of any. Furthermore, United States v. Mansoori,
304 F.3d 635 (7th Cir. 2002), suggests that his view is
incorrect. One of the defendants in Mansoori, Terry Young,
was a leader and high-ranking member of a gang
engaged in drug trafficking. In fact, he was in charge of the
gang’s drug sales. Id. at 642-43. As such, Young would
have played a substantial, broad role in the drug con-
spiracy—a role similar to Campos’s role here. In address-
ing the Mansoori defendants’ challenge to the multiple
conspiracies instruction, we cited Wilson with approval.
At oral argument Campos also argued for the first time
that the multiple conspiracies instruction was improper
20 No. 07-1561
because it did not require the jury to unanimously find
that he participated in any particular subset of the
charged conspiracy, if the jury were to find that he partici-
pated in a subset conspiracy rather than the charged
conspiracy. He did not propose a unanimity instruction
at trial and waited until his appellate oral argument to
raise the issue. Therefore, this argument is waived. United
States v. Vallery, 437 F.3d 626, 629 (7th Cir. 2006) (finding
that argument raised for first time at oral argument
is waived).
Even if not waived, Campos would not prevail on this
argument. In Mansoori, we rejected this type of argument.
We stated: “Even if the jurors were of different minds as
to the precise parameters of the conspiracy, the instruction
required them all to agree that the defendant joined a
conspiracy that was within the ambit of the conspiracy
alleged in the indictment.” Mansoori, 304 F.3d at 657. We
held that the instruction properly required unanimity
with respect to the essential elements of a conspiracy. But
even if the instruction had been defective, we concluded
that giving it was harmless error because the evidence
overwhelmingly proved that the defendants participated
in a unitary conspiracy. Id. So, too, here. Even if the
multiple conspiracies instruction had been improper, the
evidence that Campos participated in the single overall
conspiracy as charged was so overwhelming that any
error in giving the instruction was harmless.
Campos suggests that the district judge’s refusal to
give his proposed instruction was based on the erroneous
conclusion that it was sufficient if the alleged multiple
No. 07-1561 21
conspiracies occurred within the same time frame as that
of the charged conspiracy. That is not what the judge
said, though. He stated, “so long as there was one
overall conspiracy alleged . . . so long as these included, so-
called included conspiracies occurred within that time
and as generally charged in the indictment, there is no
right to give the instruction proposed by Campos.” (Trial
Tr. 1730) (emphasis added). Thus, we understand the
district judge to have required not only temporal proxim-
ity, but also that the included conspiracies were “as
generally charged,” that is, subparts of the charged con-
spiracy. The jury instruction given corroborates this
understanding of the district court’s ruling. Accordingly,
the district judge did not abuse its discretion in refusing
to give Campos’s proposed multiple conspiracies instruc-
tion.
C. Wiretap Evidence
Campos contends that the wiretap applications failed
to meet the standard of necessity, and thus the district
court should have suppressed the evidence obtained
from the wiretaps. 18 U.S.C. § 2518(1)(c) requires that
each application for an interception of a wire, oral, or
electronic communication include: “a full and complete
statement as to whether or not other investigative proce-
dures have been tried and failed or why they reasonably
appear to be unlikely to succeed if tried or to be too
dangerous[.]” This has become known as the exhaustion
or necessity requirement. United States v. Fudge, 325 F.3d
910, 919 (7th Cir. 2003); United States v. Thompson, 944 F.2d
22 No. 07-1561
1331, 1340 (7th Cir. 1991). However, this provision
should not be understood as requiring absolute necessity.
Thompson, 944 F.3d at 1340. It does not require “that any
other investigative procedure be tried first before an
order is issued for the interception of wire communica-
tions,” United States v. Anderson, 542 F.2d 428, 431 (7th Cir.
1976); see also Thompson, 944 F.2d at 1340, or that a wiretap
be used as a last resort, United States v. McLee, 436 F.3d 751,
762-63 (7th Cir. 2006); Thompson, 944 F.2d at 1340. This
provision requires only that the success of other
methods of investigation appears unlikely or too danger-
ous. Thompson, 944 F.2d at 1339-40; Anderson, 542 F.2d at
431. The government’s burden of proving necessity “is not
great” and its compliance with the necessity require-
ment is “ ‘reviewed in a practical and common-sense
fashion.’ ” McLee, 436 F.3d at 763 (quoting United States v.
Plescia, 48 F.3d 1452, 1463 (7th Cir. 1995)). We review a
district court’s finding of necessity for an abuse of dis-
cretion. United States v. Dumes, 313 F.3d 372, 378 (7th
Cir. 2002).
Each of the five affidavits supporting the applications
in this case explained that normal investigative tech-
niques had been tried with limited or no success or ap-
peared reasonably unlikely to succeed if attempted in
the investigation. The affidavits stated that the agent
(Officer Todd Arthur) believed, based on his experience
and training, that subpoenaing members of the Campos
organization to testify before a grand jury would be of no
value because it was very likely that they would flee
the jurisdiction instead of testifying, but if they were to
appear to testify, they would invoke their Fifth Amend-
No. 07-1561 23
ment rights. The affidavits also said that grand jury
subpoenas might permanently hinder efforts to obtain
statements from members of the Campos organization.
These facts support the finding of necessity. See United
State v. Gray, 410 F.3d 338, 343 (7th Cir. 2005) (finding an
affidavit that stated dealers were likely to invoke Fifth
Amendment if subpoenaed to testify before grand jury
satisfied the necessity requirement). The affidavits
further stated that based on the agent’s experience, inter-
views of the subjects or their associates would not be
useful in producing sufficient information about the
conspirators and conspiracy, responses to interviews
would include a significant amount of false information,
and interviews would alert other members of the conspir-
acy, compromising the investigation. These facts also
support the finding of necessity. See United States v.
Adams, 125 F.3d 586, 595-96 (7th Cir. 1997) (finding an
application which stated that questioning individuals
would alert them and possibly others higher up in the
organization to the fact of the investigation met necessity
requirement). The affidavits indicated that law enforce-
ment had not identified specific locations where the
Campos organization stored cocaine, drug proceeds, or
other indicia of drug trafficking, so the use of search
warrants was not a feasible at the time. Again, these facts
show necessity. Dumes, 313 F.3d at 379 (finding necessity
shown because, inter alia, agents were unsuccessful in
gathering enough evidence of drug storage locations).
As for surveillance and related interception, the affida-
vits stated that physical surveillance had been attempted
numerous times and had proven useful, but had not
24 No. 07-1561
resulted in sufficient evidence of the criminal activity
being investigated. In addition, continued surveillance
was likely to alert the suspects of the investigation,
causing them to become more cautious in their criminal
activities, flee to avoid further investigation and prosecu-
tion, and otherwise compromise the investigation. These
facts support a finding of necessity. See id. (finding neces-
sity where additional physical surveillance was believed
to increase the risk that the targets would be alerted to
the investigation); United States v. Ceballos, 302 F.3d 679,
683-84 (7th Cir. 2002) (finding fact that physical surveil-
lance would likely alert the subjects to the investigation
showed necessity); Adams, 125 F.3d at 595-96 (concluding
necessity shown where other surveillance techniques
were considered too dangerous and could result in detec-
tion of the investigation).
The affidavits further stated that no undercover agent
had been used to try to infiltrate the conspiracy because of
the close and secretive nature of the organization and that
use of an undercover agent was perceived as too danger-
ous. These facts also support a finding of necessity. See
Gray, 410 F.3d at 343 (finding necessity based in part on
fact that an undercover agent would be unlikely to infil-
trate the organization because of its insular nature); United
States v. Zambrana, 841 F.2d 1320, 1331-32 (7th Cir. 1988)
(finding necessity based on evidence that informants and
undercover agents could not infiltrate the closely run
family organization).
The affidavits also indicated that the government used
two confidential sources who had provided useful infor-
No. 07-1561 25
mation about the conspiracy. But one source was on
the fringe of the organization and had no direct contact
with the mid- or high-level members of the organization,
and the other was no longer cooperating, so he could
provide no more than historical information. The affi-
davits identified one cooperating witness by name, but
he was no longer actively cooperating and had been
incarcerated for a while, so he appeared unable to provide
information to fully identify current members of the
organization, their roles, the sources of supply, and like
details. This makes this case like Gray, 410 F.3d at 343,
where necessity was based in part on the fact that confi-
dential informant #1 could not provide current informa-
tion because of his incarceration and confidential infor-
mant #2 could not identify the source, couriers, or custom-
ers. Pen registers, toll and trace records of a phone
utilized by one conspirator were also used, but these had
their limitations as well.
Finally, the four subsequent applications for wiretaps
demonstrate the continuing need for the wiretaps. For
example, the May 22, 2003, affidavit indicated that a
wiretap on target phone 2 was needed because Campos
was using that phone to contact at least one other
member of the organization with whom Vasquez was not
in contact with over target phone 1. The June 5, 2003,
affidavit stated that Vasquez was using target phone 1 to
contact at least one other member of the organization
with whom Campos was not in contact over target
phone 2. Later affidavits stated that these uses were
continuing. Thus, the wiretap on target phone 2 and
continued authorizations for wiretaps on target phones 1
26 No. 07-1561
and 2 were needed to obtain evidence as to the full scope
of the drug trafficking and related activities.
Campos argues that where normal investigative tech-
niques are working and working well, a wiretap is not
necessary. In Zambrana, 841 F.2d at 1331-32 though, we
noted that normal investigative techniques had been
successful to some extent, but nonetheless found a
wiretap necessary because it did not appear that normal
techniques were likely to identify all co-conspirators at
all levels of the drug conspiracy. Campos also argues
that at some point after months of wiretapping, the
need for a wiretap ends. But he cites no authority
placing a time limit on necessity, and we are unaware of
any. True enough, wiretaps should not be allowed to run
indefinitely. But whether the need for a wiretap has
played out should be evaluated on an investigation-by-
investigation basis, and there is no indication that the
use of wiretaps here exceeded what was reasonably
necessary to identify and disassemble a major drug
organization.
Campos further argues that the government had all the
evidence it needed to prosecute this case such that the
wiretaps served no purpose. But using a wiretap to
obtain additional incriminating evidence against a defen-
dant is not problematic. See Fudge, 325 F.3d at 919 (rejecting
argument that wiretap was unnecessary because there
was enough evidence to prosecute each conspirator);
Adams, 125 F.3d at 596 (rejecting claim that even if first
wiretap was necessary, the second was not because the
government had obtained sufficient information from
the first). Even if the government had enough evidence
No. 07-1561 27
to indict Campos prior to obtaining the wiretaps, this
fact would not preclude a finding of necessity. See McLee,
436 F.3d at 763. After all, the government’s burden of
proof at trial is substantially higher than its burden in
obtaining an indictment. And the government was
entitled to attempt to identify the full extent of this organi-
zation and its operatives.
Campos submits that generalizations and boilerplate
language do not satisfy the necessity requirement. Other
circuits have indicated that the government may not
make the required showing of necessity with “mere
boilerplate recitation of the difficulties of gathering usable
evidence” but must “base its need on real facts” specific
to “the case at hand.” United States v. Oriakhi, 57 F.3d 1290,
1298 (4th Cir. 1995). These circuits, however, have
upheld wiretap authorizations based on applications that
contain statements about both general investigative
experience in the type of crime involved and the particular
facts of the case at hand. United States v. Vento, 533 F.2d
838, 850 n.19 (3d Cir. 1976); United States v. DiMuro, 540
F.2d 503, 510-11 (1st Cir. 1976). That is what we have here.
We caution the government, though, that the repeated
use of boilerplate from one application to the next is
discouraged. But at least here we do have additional new
information in each successive affidavit, which was
sufficient to justify the issuance of each of the wiretap
authorizations.
Nonetheless, the government’s affidavits supporting
its applications for the wiretaps established that the
wiretaps were not the first investigative method used,
which is “[t]he evil we are trying to avoid[.]” Fudge, 325
28 No. 07-1561
F.3d at 919; Thompson, 944 F.3d at 1340. The affidavits
showed the necessity for the wiretaps and thus satisfied
§ 2518(1)(c). This ruling does not lead to the conclusion
that ordinary investigative procedures always will be
insufficient to investigate a drug conspiracy. The district
courts, and we, will look at each case individually, consid-
ering the practicalities of each investigation and using our
good reason and common sense. Accordingly, we hold
that the district court did not abuse its discretion in
granting the applications for the wiretaps and in ad-
mitting the evidence obtained through the wiretaps.
Before leaving this issue, we must comment on the
statement in Campos’s opening brief that the Chief Judge
and the district judge, in approving the wiretap applica-
tions, merely “co-signed” the government’s laziness. This
is a serious allegation that is unsupported by any factual
basis. The affidavits and the record at trial demonstrate
that government agents undertook arduous efforts to
investigate this drug operation. It is also clear that the
affidavits received the rigorous and independent review
that is required by law. The judges were simply exercising
their discretion in determining whether the government
had shown necessity for the wiretaps. We find no abuse
of discretion here, and Campos’s disagreement with
that view does not justify such a pejorative and undeserved
remark.
D. Sentencing Issues
The defendant also argues that his sentence is both
procedurally and substantively unreasonable. Specifically,
No. 07-1561 29
he contends that the district court did not consider the
sentencing factors in § 3553(a) or the mitigating factor of
his pre-trial conditions of confinement.4 We review
whether a district court followed post-Booker sentencing
procedures under a non-deferential standard of review.
United States v. Price, 516 F.3d 597, 606 (7th Cir. 2008).
Under the post-Booker sentencing procedures, a district
court is to: “(1) calculate the applicable Guidelines range;
(2) give the defendant an opportunity to identify any of
the 18 U.S.C. § 3553(a) factors that might warrant a
non-Guidelines sentence; and (3) state which factors
influenced the final sentence.” United States v. Millet, 510
F.3d 668, 680 (7th Cir. 2007). The court need not make
factual findings as to each of the sentencing factors; it is
sufficient that the record shows that the court considered
them. Price, 516 F.3d at 606. This procedure was properly
followed here.5
The district court considered the presentence investiga-
tion report and the government’s sentencing memoran-
dum as well as the defendant’s objections and corrections
to that report. And the court heard the parties’ arguments
at the sentencing hearing. The defendant had an opportu-
nity to argue the § 3553(a) factors and other circumstances
that he believed justified a lower sentence, and he did so.
4
Campos refers to “various mitigating factors” in his brief
but identifies only one: the conditions of his pretrial confine-
ment; we accordingly limit our discussion to that factor.
5
Campos does not contend that the district court erred in
calculating the applicable guidelines range—a life sentence.
30 No. 07-1561
The court’s comments at sentencing reflect proper consid-
eration of the § 3553(a) factors and other circumstances
urged by the defendant; however, the court did not
conclude that they justified a below guidelines sentence.
In sentencing Campos, the district court first considered
the nature and seriousness of the offense and the defen-
dant’s conduct: “Gus Campos stands before the court
convicted as the leader of a narcotics conspiracy which was
responsible for the distribution of in excess of 1,000
kilograms of cocaine, probably greatly in excess of that.”
The court found it “hard to . . . envision an offense
more egregious, [and] that has broader ramifications” than
that committed by Campos over several years. The
court also considered the mitigating factor that Campos
had no prior criminal history. As for aggravating circum-
stances, the court found that Campos’s conduct was
motivated by nothing other than “personal greed and by
money” at the price of ruining others’ lives. The court
referred to the “chilling” tapes of conversations between
Campos and others and the “no holds barred” nature in
which he approached the cocaine distribution business.6
The court also considered the fact that Campos was
bright, having graduated 13th of 261 students in his
high school class, and could have made a real contribution
to society but chose not to do so. The court then deter-
mined that a sentence within the guideline range was
6
In a conversation with Herrera on June 3, 2003, for example,
Campos complains that business has been “dead” and “[p]eople
are not getting addicted.”
No. 07-1561 31
necessary to comply with the purposes of § 3553(a)(2). The
court found that deterrence was especially important
in this case “because the rewards, the money is obviously
so lucrative . . . that it would induce people such as
yourself to take the risk of this kind of incarceration
simply for financial reward.” Based on its meaningful
consideration of these factors, the court determined that
a sentence within the guideline range was “clearly” and
“eminently” reasonable. We conclude, as the district
judge’s comments at the sentencing hearing demonstrate,
that the judge properly considered the § 3553(a) factors
and adequately explained how they affected his deter-
mination of the sentence.
Campos also argues that the sentence itself was unrea-
sonable. We review a sentence for reasonableness in
light of the factors in § 3553(a). United States v. Tahzib, 513
F.3d 692, 694 (7th Cir. 2008). A sentence properly calculated
within the guidelines range is presumed reasonable. Rita
v. United States, --- U.S. ----, 127 S. Ct. 2456, 2462-68 (2007);
Tahzib, 513 F.3d at 694. A defendant can rebut this pre-
sumption by showing that his sentence is unreasonable
when considered against the § 3553(a) factors. United
States v. Harvey, 516 F.3d 553, 556 (7th Cir. 2008). Campos
has not rebutted this presumption.
Campos asserts that the district court failed to
consider his pretrial conditions as a mitigating factor.7 The
7
He complains that he was incarcerated in county jail facilities
without: work or education programs; adequate recreation,
(continued...)
32 No. 07-1561
record, however, establishes that the district judge did
consider Campos’s pretrial conditions even though the
judge did not view them as a proper consideration for
mitigating the sentence. Pretrial conditions of confine-
ment are not included in the § 3553(a) factors, United
States v. Martinez, 520 F.3d 749, 752-53 (7th Cir. 2008);
United States v. Ramirez-Gutierrez, 503 F.3d 643, 646 (7th
Cir. 2007), and we have not decided whether extraordi-
narily harsh conditions of confinement could ever justify
a reduced sentence. But even if unduly harsh conditions
could justify a lower sentence, Campos has not sup-
ported his claims of his pretrial conditions with any
evidence. He cites merely to his objections and corrections
to the presentence report, which are not supported by
evidence. And even if Campos had properly supported
his claim, the conditions about which he complains do
not compare with those which have been found by other
circuits to justify a reduced sentence. See, e.g., United States
v. Pressley, 345 F.3d 1205, 1219 (11th Cir. 2003) (concluding
length and conditions of defendant’s pre-sentence con-
finement—for six years, five of which were in a 23-hour-a-
day lock down and where defendant had not been outside
in five years—were not insufficient as a matter of law
7
(...continued)
security, or medical care, particularly for his ear condition;
kosher and nutritional foods; and religious services, a law
library, newspapers or magazines. He also complains that his
visitation with family and counsel was restricted and that the
jail facilities were such that he could not review the electronic
evidence against him.
No. 07-1561 33
to support a downward departure); United States v. Carty,
264 F.3d 191, 193 (2d Cir. 2001) (remanding for consider-
ation of defendant’s request for downward departure
for pre-sentence conditions of confinement where defen-
dant had been held eight months in a Dominican prison
in an unlit four-by-eight-foot cell with three or four
other inmates; he had no light in his cell; he had 10 to 15
minutes per day outside his cell to bathe; he had no
running water in his cell; he had no paper, pens, newspa-
per, or radio; and was allowed only one phone call a week).
In short, we find no procedural error in the sentencing
process, nor do we find that the sentence in this case
is unreasonable.
III. Conclusion
For the foregoing reasons, Campos’s convictions and
sentence are A FFIRMED.
9-3-08