United States v. Raul Dominguez

678 an cause arrest is abso- probable tence that his resis- of belief

justifies a reasonable unlawful 1983 claim for lute bar to Section once the tow might tow escalate tance arrest, pros- imprisonment, or malicious false arrived, possibility real generating a truck County, 875 Waupaca v. ecution.” Schertz Biddle and between physical confrontation (7th Cir.1989). 578, also Fer- F.2d 582 See police or officers. truck driver the tow Perez, 368, 371 Cir. nandez relationship v. between Biddle’s believe We 1991). probable cause existed for Because a breach of the and unreasonable conduct arrest, prosecution his malicious satisfy require- Biddle’s enough to clear peace is claim barred. is probable cause. ments of circumstances, we believe a Given III. believed, have even officer could

reasonable probable cause to mistakenly, that he had reasons, foregoing judgment For charges offered Biddle on one of arrest the district court — Bryant, Hunter v. U.S. justification. See Appellant Affirmed, with to Bear Costs. 534, 537, -, -, 116 L.Ed.2d 112 S.Ct. (1991) immunity qualified (discussing 589 agents arrested who individual

secret service President);

they threatened believed 635, 641, 107 Creighton, 483 U.S.

Anderson v. (1987). 3039, L.Ed.2d

S.Ct. protect “all

Qualified immunity is intended America, UNITED STATES incompetent or those who plainly but Plaintiff-Appellee, law,” Malley Briggs, knowingly v. violate the 1092, 1096, 335, 341, 106 S.Ct. 475 U.S. v. (1986), will accommodate L.Ed.2d DOMINGUEZ, Defendant- Raul errors officials should reasonable “because Appellant. always of caution on the side because not err — Hunter, No. 92-2363. being sued.” U.S. fear (citations omitted). -, 112 S.Ct. at 537 Appeals, Court of United States Accordingly, we that Biddle’s drunken find Seventh Circuit. probable cause to him created arrest tirade Argued Dec. conduct, 1992. disorderly facts surrounding probable created Miller’s arrest April Decided 1993. improper opera an cause for arrest for As Amended June they had probable van. tion of the Because arrest, are for the the officers entitled cause qualified immunity Biddle’s false arrest on

claim.

C. Malicious Prosecution prosecution ac

Whether a malicious § may brought

tion be under is still

open question. opinion, ruled In a recent we brought a claim in the

that such could not be other palpable

absence of incarceration or Oliver, consequences. Albright (7th Cir.1992). Supreme Court — granted

has in the case. certiorari U.S. (1993).

-, 113 S.Ct. 122 L.Ed.2d 757 resolution Biddle’s claims need however, Supreme

await the decision Court’s

because we have also ruled “the exis- Atty., packages. Tr. After Wagner, Mil- found on Jeffrey Asst. U.S.

R. waukee, plaintiff-appellee. engaging phone in several conversations with (argued), for WI City Jackie Galvan Guatemala (ar- Lonski, Milwaukee, WI Michael J. California, concluded defendant-appellant. gued), trans- that was cocaine and the substance $12,000 34, Re- POSNER, FLAUM, payment. the Tr. 39. ferred and Before these also ROVNER, cordings of conversations were Judges. Circuit into evidence. entered FLAUM, Judge. Circuit transaction, negotiations contin- After Dominguez one jury Raul of A convicted 1991, August government infor- ued. In of to in distribute excess count of Andres, Jorge met Jackie mant Garcia with kilograms in violation of of cocaine five Raul Dominguez’s co-conspirator, and with 841(a)(1), and section section U.S.C. in Tr. Gar- Dominguez California. 43-44. sentencing, At the district section 2. U.S.C. acknowledged Dominguez cia testified judge independent an determina- court made Agent air- meeting Melick at Milwaukee Dominguez perjured had himself tion that to do port and stated that he did not want two and enhanced his base offense level trial him believed again with because he business justice. obstruction of U.S.S.G. points 7-8,10. cop. testi- Tr. Garcia Melick was Dominguez challenges appeal, § 3C1.1. On never multiple fied that deal his conviction and his sentence. We both and from one kilo- transpired that aside affirm. gram purchased in no cocaine was Guatemala charged in or connection seized I. Agent Tr. cor- conspiracy. 15-16. Melick 42-44, testimony. Tr. 55. roborated Garcia’s help of informant With the Garcia, En- Drug the United States Cesar Dominguez categorically being Raul denied (“DEA”) negotiat- forcement Administration any conspiracy being or in Mil- involved Dominguez, of Raul ed with Jackie sister January Testi- waukee on 1991. Tr. 81. kilograms Dominguez, purchase 300 to defense, claimed fying in his own the course of cocaine. Tr. 5. Over several Rapha- not man identified as he was telephone ten con- approximately months and el, jury tapes heard on the of the whom versations, agent Ray arranged DEA However, Tr. Milwaukee transaction. delivery kilogram “sample” for the of one recordings listening to and assess- after larger prelude of cocaine as a deal. witnesses, ing credibility 11, 1991, January the one Tr. 19-20. On defense, rejected the misidentification kilogram sample was delivered Guatemala dis- guilty conspiring to found City, by co-conspirator Guatemala Jose Gal- tribute cocaine. Simulta- agent van to DEA Janet Turnbull. neously, Melick met an individual Agent II. allegedly Raul Raphael, known as Domin- airport to guéz, at the Milwaukee transfer appeal, Dominguez challenges On $12,000as payment the Guatemalan sam- ground his on the that the district conviction meeting ple. tape This was re- Milwaukee admitting court erred recordings admitted as corded and the were identity deliv substance establish evidence. defense counsel’s ob ered as cocaine. Over jection, During meeting, the district court admitted Agent Melick became she learned Agent Turnbull that had concerned that the delivered was substance pack police had the pay refused until he could “the Guatemalan cocaine and ages to contain verify authenticity. tested and were found its Tr. 31-32. The con- district general, Tr. 62. delivered cocaine.” cern arose because substance in determin Agent given court broad discretion packaged Turnbull was several According ing admissibility single of evidence. packages opposed smaller as evidentiary brick, ly, challenges to determinations powder was because a non-cocaine testimony regarding reviewed for a clear abuse this discre- analysis are chemical Rodriguez, substance delivered tion. United States v. Guatemala. (7th Cir.1991); United States v. gov It is well established that the L’Allier, Cir.1988). 234, 242 prove ernment need not aof Agent by Turnbull offered by evidence, controlled substance direct clearly statement, hearsay, was a as it long as the available circumstantial evidence than other one made the declarant while identity beyond establishes its a reasonable trial, testifying offered to 541; Manganellis, doubt. 864 F.2d at see in fact substance received was cocaine. Fed. Blanton, also United States v. 801(e). being applicable no R.Evid. There Murray, United States v. hearsay exception, it was an abuse of discre- (7th Cir.1985). Circum to admit tion this evidence. establishing stantial evidence identification may price include a sales consistent with that hearsay The admission of testi cocaine; sale; of the covert nature of the on- error, mony does not reversible constitute conspirator the-scene aby identify remarks however, “if that we determine the error had ing drug; lay-experience the substance aas on no influence the verdict.” substantial through use, familiarity prior on based trad 748, Cherry, States v. 938 F.2d United 757 enforcement; ing, or law and behavior char Grier, United States v. 866 drug Manganellis, acteristic of sales. 864 (7th 908, Cir.1989); F.2d 920 FED. F.2d at 541. 52(a) ... (“Any error which R.CRIM.P. does case, In the instant record is unclear as rights affect substantial shall be not disre- Agent what Melick considered which even- “ garded.”). Only if said it can be ‘with fair tually him convinced that the delivered sub- assurance, happened all pondering after that was Review of telephone stance cocaine. stripping without the erroneous action from conversations held between Melick and Jack- whole, judgment that the was not sub- ie or fail to Galvan reveal a factu- error,’ stantially swayed by the can we con- support Agent al basis to Melick’s belief. clude the error was harmless.” United Additionally, no Agent there is evidence that (7th 528, Manganellis, v. 864 F.2d 539 States Turnbull, accepted delivery who in Gua- Cir.1988) (quoting v. Kotteakos United temala, experienced identifying was co- States, 764-65, 1239, 328 66 U.S. S.Ct. In Agent caine. fact Melick became con- (1946)). 1247-48, Thus, 90 L.Ed. 1557 where Agent precisely cerned because Turnbull was incriminating untainted evidence other is uncertain whether the substance she received overwhelming, the error deemed harmless. authentic. was The other circumstantial evi- Id. (an by relied on dence $12,000, agreed upon price of consistent with Dominguez argues admission price for one of cocaine in Gua- hearsay prejudiced by evidence his defense manner in temala the covert which the theory precluding an alternative of defense conducted, delivery was transaction Specifical- not error. and thus was harmless Milwaukee) payment in Guatemala and could prior ly, contends that admission of he easily support the existence of a sham testimony Agent hearsay there Turnbull’s drug drug sale as an authentic sale. More insufficient evidence from which a ra- was importantly, arrangements those were made beyond could a reason- tional conclude by agent, the undercover and thus are not doubt that the substance delivered able necessarily conspirators’ indicative in- allowing was cocaine and that Guatemala tent. eliminated doubt the con- Agent distinguishable This involved actual cocaine. Turn- evidence is spiracy those identity hearsay testimony only in which was direct cases the substance bull’s prove packages by established circumstantial offered to was evidence. City Manganellis, (co-conspir- contained co- 864 F.2d at 541 Guatemala See received conspir- drug from the knew No cocaine obtained ator’s that she received caine. evidence, nor was from defendant was cocaine acy received into there because defen- 682 it); spiracy accomplished. not be United told her it was and because she tried need dant Cea, F.2d States v. 886-87

Murray, (testimony at 615 co- (evidence Cir.1990) sufficient to defen marijuana conspirators that had smoked in a conspired possess dant cocaine re years, ten and that the for five to substance investigation cocaine buy verse where no they received from the defendant to sell hands); changed v. Had United States looked, marijuana); like smelled and smoked cf. (7th Cir.1992) (of dad, 1088, 1094 Roman, States v. possess an attempt cocaine is fense of (7th Cir.), denied, cert. U.S. require does not com inchoate crime which (1984) (same). S.Ct. 80 L.Ed.2d underlying of pletion substantive identifying substantial evidence fense); Wesson, United States substance was the direct evidence allowed (7th Cir.1989) (offense aiding through hearsay. improper the absence re abetting possession of cocaine does not evidence, of the inadmissible proof pos quire of the substantive offense prosecution identity failed to establish session). intent It is the to distribute the substance as cocaine. element, key that is controlled substance government’s to prove failure actually the substance distribut whether drug underlying of the substance illegal See ed was in fact substance. conviction, particularly involving an under- (citation omitted). Roman, 728 F.2d at 859 buy,” significant creates a cover “controlled a When a defendant sells substance which It problem. easts doubt on essential ele- substance, is in it is reason fact a controlled crime, ment of the the intent to defendant’s to that he knew nature of the able infer the sell narcotics. The risk of mistaken conclu- possessed to substance and thus the intent in greater is much than sions cases where Likewise, distribute a controlled substance. merely in has been a break the chain of there the which sale of a noncontrolled substance custody. generally See United v. States subjectively a the defendant believes to be Lott, Cir.1988) (dis- 244, 854 F.2d 250 can an at controlled substance constitute custody crepancies go the chain of tempt to distribute. United States v. Ever weight of the rather than evidence the admis- (3rd Cir.1983). ett, 900, 908 (same). L’Allier, sibility); 242 attempted possession, if an convictions any objective prove basis to criminal Without intent to is individual with the obtain cocaine substance, intent, illegal as proof such of the substance, duped buying fake in into a his hearsay might of the admission tent to the actual is estab obtain substance have had substantial influence on the ver- a Reeves, lished nonetheless. United v. States dict, and thus error. would be harmless 1101, (6th Cir.), 2 794 1103 n. cert. F.2d denied, 463, 479 107 93 U.S. S.Ct. not fatal to error is the convic (1986); Everett, L.Ed.2d 408 700 F.2d at however, tion, government presented if the Finally, during buy” if a 904-08. “controlled overwhelming evidence of the existence of instigated by undercover law enforcement conspiracy knowing and the defendant’s agents, duped buying an officer is into a fake objective. participation in its criminal See drug, for actual it substance substituted F.2d Curry, 977 1053 United States v. can be that the officer had the intent to said Durrive, v. States 902 substance, obtain the actual but the converse (7th Cir.1990). Proof of the F.2d logically does not follow. a not es controlled substance is conspiracy to a conviction. See Ro sential of identification evidence absence (nature man, n. 9 makes it more difficult to conspiracy in a count charged subjective substance the defendant’s intent to beyond proven a reasonable beyond need not be deliver a a controlled substance rea- However, doubt; a possible believed be con is if substance sonable doubt. it fact). objective be so As substance need not there is substantial evidence of trolled acts, whole, crime, unequivocally offense of which taken as an inchoate subjective illegal into in- complete entering establish the criminal upon thus, objective con- tent distribute controlled substance. agreement; McDowell, v. agents, See United States cover informant, (11th Cir.1983). Accordingly, the district and several recorded conversations. Confi- admitting court’s error in evi- dential informant Garcia testified that in- he compels Dominguez’s dence reversal of con- Dominguez troduced Jackie Agent if, viction after examining the record as up order to set buy. the controlled At whole, may we conclude that the error have least two of the initial conversations between had a substantial influence on the outcome of Jackie and Melick were recorded the trial. See Bank Nova Scotia United and entered into evidence. Garcia also testi- States, 250, 256, 487 U.S. 108 S.Ct. fied about his continued contact with the (1988). proper- L.Ed.2d 228 If the conspirators during negotiations until the ly clearly admitted evidence so established multikilogram collapsed. deal He testified Dominguez’s knowing participation in the that, eight months after kilogram the one conspiracy that the verdict would have been transaction, spoke he to Raul same, error, absent the then we will not California and that Dominguez told him that overturn conviction. Milwaukee, he had met Melick in suspected agreement The existence of an to dis Melick agent, was an undercover and did not may tribute cocaine be established either want go through larger with the deal. direct or Curry, circumstantial evidence. Agent Melick negotiated testified that he 1053; Durrive, 977 F.2d at 902 F.2d at 1229. purchase kilograms of cocaine to prosecution “If presents enough circum Milwaukee, be delivered Wisconsin. Be- stantial support, beyond evidence to a rea multikilogram transaction, fore the he ar- doubt, sonable an inference that the defen ranged for a one sample of cocaine agreed among dants themselves to distribute to be delivered in Guatemala drugs, justified would be in convicting payment to occur in Milwaukee. As is com- these conspiring together.” defendants of in conducting drug negotiations, mon Melick Townsend, (7th U.S. v. gave Dominguez Jackie the number to an Cir.1991). Moreover, prosecution the is “not paging electronic (“beeper”). device He was every hypoth to exclude reasonable subsequently through beeper contacted the long esis of innocence so as the total evidence calling a man Raphael, himself whom permits a guilt beyond conclusion of a rea Melick identified as the defendant. Melick Burrell, sonable doubt.” United States v. Dominguez met Raul at the Milwaukee air- (7th Cir.1992). Ordinarily, port and wore a wire to record the transac- reviewing in challenge sufficiency of attempt verify tion. In an authenticity the evidence, we view the evidence and all Agent Turnbull, of the cocaine delivered to light reasonable in inferences most favor Melick contacted government, Dominguez both Jackie able to the and unless the rec ord is devoid of California and Galvan in evidence from which Guatemala. These jury telephone rational could have found the defendant conversations were recorded and guilty beyond doubt, a reasonable will we admitted into evidence. Satisfied that Curry, affirm. 977 F.2d at 1053. Because cocaine, substance was fact Melick trans- jury may this have improperly considered $12,000 ferred the payment to the defendant evidence, however, admitted we review again Dominguez and called Jackie in Cali- record to determine whether the other evi Dominguez fornia to have Raul assure her overwhelming dence was and thus the error paid. that Nearly eight he had been months was harmless. transaction, after this Melick went to Califor- Dominguez nia to meet with Jackie To the existence order negotiations participation, govern- kilogram and the defendant’s continue for the 300 presented ment of the under- deal.1 He testified that he saw Raul Domin- negotiations one) larger govemment agent pretending Because for the deal contin- to be would ued, disagree position negotiating we with the that risk "[i]t millions dollars of cocaine equally plausible suppliers that previously the one deal was with the same who had sto- $12,000, designed substituting sham 'test the waters' with Mel- len a fake substance Dissent, p. contrary, agreed kilogram pur- ick.” 686. On the it seems of cocaine. One obvious (and therefore, implausible drug pose sample ability that a dealer for a deal is to test the and v. Vil See United States him as them deference. identified guez while California lasenor, air- met at the Milwaukee had the man he

port. Wyhe, 965 States v. Van United Cir.1992). case, also have In this we stand at took the Dominguez also Raul support the credibility findings to judge’s support of his misidentifi- Testifying in trial. against Dominguez. weight of the evidence had defense, Dominguez stated that he cation specific find sentencing, judge made and was not At Milwaukee been to never airport. below, the Milwaukee met at the defendant’s ings, man Melick discussed he did not Dominguez also testified inherently per- unreliable and Jorge or Andres were his sister know that jury’s supports the jurious. This further jury dealing. The also in cocaine involved the defendant’s testimo to discount decision that his sister Jack- from learned ny. airport at the Detroit arrested ie had been immigra- believed were he said he for what Dominguez’s Finally, we address questioned on cross- When tion violations. erroneously challenge that the district court however, examination, expressed he doubt points level two his base offense enhanced immigration the arrest stemmed justice. Section 3C1.1 for an obstruction problems. Sentencing Guidelines States case over- The untainted provides that: jury’s verdict. The whelmingly supports the judge the credi- opportunity wilfully jury had the obstructed or If the defendant and the bility Agent Melick im- attempted or impeded, or to obstruct informant, identified the defendant who both justice during pede, the administration of conspiracy. key member as investigation, prosecution, or sentenc- addition, recordings jury considered offense, increase the ing of the instant setting up the the initial conversations by 2 level levels. offense [defendant’s] deal, agents that the the calls to assure (Nov.1991). cocaine, Application § and the en- 3C1.1 substance was U.S.S.G. delivered 3(b) dur- “committing, suborning, counter between or note includes airport transaction. ing the Milwaukee perjury” conduct attempting to suborn Moreover, opportunity to had the justice. obstruction of which constitutes credibility his from judge the defendant’s 3(b)) (Nov. (n. 3C1.1, § comment U.S.S.G. testimony his on stand. and demeanor 1991). voice from comparing the defendant’s After argues increasing a defen Dominguez tape the voice on his trial with transaction, under section 3C1.1 dant’s base offense level recording of the Milwaukee Dominguez jury that Raul was because it perjury believed for is unconstitutional “Raphael” who re- man identified as same right testify to in his own a defendant’s chills money Agent Melick. ceived the rejected previously We have defense. hearsay testimony was admitting error Contreras, v. argument. United States same clearly other evidence harmless because the (7th Cir.1991); 1191, 1194-95 see participation in the Dominguez’s established Davis, Adebayo F.2d v. & United States 757-58; Cherry, conspiracy. See v. United States Grier, 866 F.2d at 920-22. Cir.1992). Casanova, Supreme in United Recently the Court credibility of Determinations as to the — -, -, Dunnigan, U.S. States particularly are within' the witnesses (1993), 1111, 1112, 122 L.Ed.2d 445 ordinarily jury, give we S.Ct. province of the fore, de- he chose the misidentification through” whether reliability supplier “come to defense, negotiations drugs. continued The fact that cocaine fense or the sham appear pre- sample delivery would agents after persuade that the and the hád inference other than clude reasonable were incredible. informant conspirators There- delivered real cocaine. therefore, position, holding that a confirmed our sen- his trial and the two-level enhance- by application appropriate.” ment Id. tence enhanced section We find the court’s determination perjury encompass for the commission of does not sufficient to 3C1.1 predicates all of the testify finding factual for a right or remain undermine perjury. by Given the offered silent. agents by the confidential informant guard against To sentence enhance which Dominguez’s contradicted misidentifi- every testify ment as a matter of course for defense, ample cation there is support for the convicted, ing defendant who is the Court findings. district court’s objects that if a held defendant to a sentence resulting enhancement from trial his testimo III. ny, required the district court is tó “review 'conspir- convicted independent findings the evidence and make ing cocaine, to distribute not the substantive necessary impediment to establish a willful offense of cocaine distribution. Identification justice____” Although or obstruction of Id. of the transferred substance as an actual preferable “it is for a district court to ad- controlled substance was not alleged perjury dress each element of the conviction. properly Because the admitted separate finding,” and clear it is sufficient evidence overwhelmingly established the de- finding if “the court makes a of an obstruc- knowing participation conspira- fendant’s in a impediment justice tion or that encom- cy cocaine, to distribute we Affirm. passes predicates all of the factual for a finding perjury.” sentencing Id. The ROVNER, ILANA DIAMOND Circuit court’s determination that a defendant testi- Judge, dissenting. falsely finding at trial fied is a of fact which agree I that the district court abused its accepted clearly will be unless it is errone- discretion when it admitted Easley, ous. United States v. identifying kilogram sample” the “one as co- (7th Cir.1992); Casanova, 970 F.2d at caine. I Because cannot conclude with fair assurance that the district court’s error did- substantially verdict, sentencing, Judge jury’s

At influence the Curran made however, I would independent reverse defendant’s convic- upon determination based tion and remand for a new trial. credibility observations of the defendant’s testifying while and an assessment of the majority explains, As the to find order facts, Casanova, 970 F.2d at that Domin harmless, the district court’s error we must “ guez perjured had himself at trial and en assurance, be pon- convinced “withfair after hanced his base points offense level two dering happened all that stripping without justice willful obstruction of under section whole, the erroneous action from the though' Dominguez 3C1.1. Even does not judgment substantially swayed was not challenge sentencing judge’s finding of (Ante 681) (quoting the error.’” fact, sentencing we have reviewed the tran (7th. Manganellis, States v. “ script Recognizing and find no clear error. Cir.1988).) inquiry merely Our ‘cannot be duty independent his to an factual make de enough whether there support was to the termination, Judge Curran made the follow result, apart phrase affected ing Dominguez’s observation as to demeanor: rather, so, error. It is even whether the ” appeared many years “It to the court after error itself had substantial influence.’ witnesses, observing that this defendant was Grier, United States v. uncomfortable, very very espe nervous and Cir.1989) (quoting Kotteakos v. United cially during part testimony States, that of his where 328 U.S. 66 S.Ct. 1247- challenged identity he and identification.” 48, (1946)). Thus, majori- 90 L.Ed. 1557 Sentencing judge Tr. at 7. The concluded: ty properly untainted, requires that the in- testimony the circumstances the “Under criminating “overwhelming” evidence be (ante 681) this was at such defendant odds with the “unequivocally at and that it estab- in only other evidence the record that I can subjective lish” defendant’s criminal intent to gave narcotics, testimony during conclude that he false sell which is “an essential element” (Id. deal, that he kilogram stated at eme charged here. of the through larger go to with did not want 683.) majority, I not find do Unlike Agent he believed deal because unequivocal- here evidence that the untainted Although this cer- agent. was undercover an intent. Dominguez’ criminal ly establishes multikilogram later tainly suggests that the definitively shows that Dom- The evidence cocaine, it authentic deal would have involved distribute engaged in a scheme to inguez was It that the earlier deal did. does not confirm to the powdery a substance one equally plausible that However, unequivocally it does agents. designed to “test the wa- deal was a sham intent to distribute defendant’s establish Thus, the informant’s ters” with Melick.2 only The direct evi- substance. controlled “unequivocally establish” does not intent in this criminal dence of defendant’s intent. requisite criminal hearsay. ma- improper respect was the Moreover, hearsay testimony cru- was meticulously details the circumstantial jority sug- was evidence cial here because there participation in a Dominguez’ evidence of concerns gesting that Melick himself had over- conspiracy and finds that evidence (See authenticity of the substance. about the (Id. 683-84.) whelming. at The evidence of 680.) Agent Melick testified that he id. at conspiratorial agreement is indeed over- that the concerned when he learned became just an whelming, it is as indicative of but packages smaller substance was several transaction as agreement to conduct a sham single and when initial opposed to a brick an agreement to consummate it is of an powder on the disclosed a non-cocaine tests fact, majority drug deal. authentic Indeed, jury tape-re- packages. heard go- similar circumstantial evidence dismisses sug- conversations which Melick corded ing sub- distributed “ripped being was afraid of gested that he easily support it “could as stance because expressed concern that off.” Melick also his drug sale as an authentic of a sham existence Turnbull, packages received the Agent who (Id. 681-82.) The drug at same is sale.” inexperi- City, new and in Guatemala evidence of defen- true of the circumstantial this sort of transaction. This enced with easily suggest an intent. It could as dant’s ju- in the may have raised doubts deal. intent to conduct a sham authenticity of the rors’ minds about the substance, subjective providing probative defendant most distributed The evidence agreed argue that he had opportunity the confi- to intent is the criminal agents.3 The only scam the undercover eight months after the informant dential out, - conducting the defendant and his majority points action that would land this 1. As the light It is therefore not behind bars. inquiry, we view the evidence in the confederates do not suggest agents implausible informant, and the government, as we would most favorable to by Dominguez eight reviewing challenge sufficiency even if burned earlier, 683.) plans (Id. press would forward with months evidence. Moreover, Dominguez’ subsequent deal. for a larger deal is en- disagrees postulation, to consummate the majority reluctance 2. The (and theory because drug tirely with this "scam” finding "implausible that a dealer consistent it buyers therefore, their for the government agent pretending to be it evidences his distrust view, Thus, one) my- would negotiating dol- for millions of motives.- would risk "persuade suppliers who not have been .with the same had lars of cocaine $12,000, substituting agents were incredible” and the informant previously a fake stolen (Ante (id.), attempting to do agreed kilogram.” that course, were but for the substance suggest 683-84, 1.) mean to jobs. Of I do not implausibility a sce- their n. of such majority's evidence is im- view of the apparent were an be if this nario would indeed susceptible supplier plausible, that the evidence a between actual series transactions dealer, unequivo- differing interpretations i.e., it is not drug for such a dealer would and a true — subsequent cal. unlikely a transaction be to conduct eight supplier him who had "scammed” 3.Admittedly, Dominguez’ primary at tri- defense buyers were not But the here months earlier. identity trans- rather than sham solely by mistaken average al was your motivated street dealers finding Instead, necessitate a But that does not action. their own financial self-interest. improper identifica- After the harmless error. government agents infor- and a were government’s was admitted in the negotiating evidence a tráns- tion mant who were interested hearsay testimony effectively erased I respectfully dissent from the court’s deci- conviction, argu- such doubts and foreclosed such an Dominguez’ sion to affirm ment. majority affirms defendant’s convic- largely assumption

tion on the basis of its “[ijdentification of the transferred sub-

stance as an actual controlled substance was (Id. 685;

not for conviction.” at see 682.) also id. at But this assumes that Dom- inguez and his confederates intended to dis- America, UNITED STATES of words, although tribute cocaine. In other it Plaintiff-Appellee, is true that the offense of is com- plete upon entry illegal agreement, into an agreement does not violate the HOLLAND, statutes Janet K. Defendant- at issue here unless it involves the intent to Appellant. distribute controlled substance. If the con- No. 92-2830.

spirators agree only deal, conduct sham illegal conspiracy. there is no This case is Appeals, States Court of necessarily like those eases discussed Seventh Circuit. (see 682-83) majority id. at in which a Argued April 1993. defendant intended to distribute a controlled substance that something turned out to be April Decided 1993. illegal agreement An else. exists there even Rehearing Rehearing In Banc if the substance is never identified. The May Denied said, however, conspi- same cannot be if the agreement pass ratorial is one to off some powdery

other substance as cocaine. In that

situation, conspirators requisite lack the

intent. concedes, majority prove

As the failure to of the controlled substance significant problem,”

this instance “creates a

for “[i]t casts doubt on an essential element crime,

of the the defendant’s intent to sell (Id. 681-82.) majority

narcotics.” “[wjithout acknowledges any objec-

also intent,

tive basis to criminal such as

proof substance, illegal admission of might had a have sub- verdict,

stantial influence on the and thus (Id. 682.)

would not be harmless error.” Here, agree.

I the circumstantial evidence illegal might intent suggest a sham deal as

readily it drug does an authentic transac-

tion, meaning that an essential element charged

crime in the indictment has not been

“unequivocally established.” In these cir-

cumstances, say it is difficult to

hearsay testimony did not have substantial jury’s Accordingly,

influence on the verdict. case-in-chief, substance, foolhardy authenticity it would have been that defense would argue improper defendant to sham. Without the plausible. have been much more testimony, given Melick’s concern about the

Case Details

Case Name: United States v. Raul Dominguez

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jun 15, 1993

Citation: 992 F.2d 678

Docket Number: 92-2363

Court Abbreviation: 7th Cir.