United States v. Cristobal Vargas
2012 U.S. App. LEXIS 16667
7th Cir.2012Background
- Vargas was convicted by jury of attempting to possess with intent to distribute 500 grams or more of cocaine under 21 U.S.C. §§ 841(a)(1), 846.
- DEA investigators used a confidential informant, Rojo, to infiltrate a muffler-shop drug operation and instructed Rojo to engage Vargas in a drug-trafficking-tinged scenario involving “possible cocaine trafficking.”
- Rojo and Vargas conducted roughly a dozen coded telephone conversations; Vargas transported $45,000 in cash to a Walgreens parking lot for a drug deal.
- A planned arrest occurred in the Walgreens lot; Vargas was arrested with the cash in a shoe box, and the encounter was recorded.
- The government introduced Rojo’s testimony about the agents’ suspicions of cocaine trafficking, ten recorded conversations, and surveillance evidence; Vargas sought admission of a video excerpt and a “mere presence” defense instruction.
- The district court allowed evidence and charged the jury on three elements (intent, knowledge of a controlled substance, and a substantial step), while also giving a mere association instruction but denying a proposed “mere presence” instruction; Vargas was convicted, then appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Rojo statement about “possible cocaine trafficking” | Vargas: statement is improper propensity evidence. | Government: statement provides necessary context/foundation. | Admissibility error but harmless. |
| Rule 106 completeness: post-arrest “buying a truck” statement | Statement should be admitted under completeness/excited-utterance/state-of-mind. | Statement not admissible under any hearsay exception or completeness. | No error; completeness exception not applicable. |
| Need for a mere presence instruction | Jury could convict based on presence at scene; instruction needed. | Conviction required intent and substantial step; mere presence not sufficient. | No error; charge adequately instructed on elements and defense theory. |
Key Cases Cited
- United States v. Danford, 435 F.3d 682 (7th Cir. 2006) (review of mistrial ruling is highly deferential; harmless error standard applied)
- United States v. Gorman, 613 F.3d 711 (7th Cir. 2010) (discussed inextricable intertwinement doctrine; limits to its use post-Gorman)
- United States v. Foster, 652 F.3d 776 (7th Cir. 2011) (evidentiary contextual evidence analyzed after Gorman)
- United States v. James, 464 F.3d 699 (7th Cir. 2006) (mere presence instruction framework; four-part test for granting instruction)
- United States v. Zahursky, 580 F.3d 515 (7th Cir. 2009) (jury instruction presumptions and following district court rulings)