In mid-2000, the Federal Bureau of Investigation, Immigration and Naturalization Services, Indianapolis Police Department, and Metropolitan Drug Task Force began investigating the drug trafficking activities of a Mexican drug organization. Law enforcement determined that members of this organization were obtaining large amounts of controlled substances, including methamphetamine, cocaine, marijuana, and amphetamine, from individuals in Mexico, Texas, and Illinois. They were then distributing the drugs throughout areas in Indiana surrounding Indianapolis. Martin Avila, Fidelmar Soto-Nava, Wilbert Avant, Rene Nava-Rubio, and Hilario Espinoza-Sarco were all identified as potential members of the organization.
From March through August of 2001, officers utilized court-authorized wiretaps to monitor cellular telephones linked to Soto-Nava and Nava-Rubio. In several of the intercepted conversations, Avila discussed the sale of drugs with Nava-Rubio using code language. At times, Avila also spoke briefly with Soto-Nava, although it does not appear from the record that they discussed drug distribution. Seventeen of these recordings would later be admitted into evidence at Avila's trial.
On October 17, 2002, Avila and eight other members of the organization were indicted for conspiracy to distribute and/or possess with the intent to distribute numerous controlled substances. Specifically, the grand jury charged that Avila and his co-conspirators distributed 500 grams or more of a mixture or substance containing methamphetamine, 50 grams or more of methamphetamine, 500 grams or more of a mixture or substance containing a detectable amount of cocaine, and 100 kilograms or more of a mixture or substance containing a detectable amount of marijuana.
United States of AmericaFrom 2000 to 2001, law enforcement officers conducted an investigation that revealed extensive drug trafficking activities in the Indianapolis area. An organization comprised primarily of Mexican nationals was obtaining large amounts of controlled substances from individuals in Mexico, Texas, and Illinois, and redistributing the drugs throughout parts of Indiana. On October 17, 2002, Martin Avila and eight other individuals were indicted for their roles in the conspiracy. Avila was tried alone in a two-day jury trial and convicted on March 13, 2007.
In its case-in-chief, the government called two law enforcement officers who had been involved in the investigation, Jo Ann Burkhart and Michael Reeves. Burkhart, an FBI special agent in Indianapolis, testified that law enforcement personnel had discovered the drug operation and eventually seized large quantities of methamphetamine, marijuana, cocaine, and amphetamine. She also explained the monitoring of Soto-Nava's and Nava-Rubio's phones.
Reeves, an INS agent at the time of the investigation, testified that he was working undercover in Indianapolis in 2001. While undercover, Reeves purchased methamphetamine from Soto-Nava at least twice, once on a consignment basis. He also testified that after Soto-Nava was incarcerated, he continued to purchase drugs from Soto-Nava's common-law wife and another young man.
The government also called two of Avila's co-defendants — Avant and Nava-Rubio. Avant testified that he was selling drugs in Indianapolis in 2000 and 2001. Avant originally had been receiving drugs from Soto-Nava and Nava-Rubio. At some point, however, Soto-Nava introduced Avant to Avila so that Avant could obtain larger quantities of cocaine. Avant never testified to whether Avila knew that this was the purpose of the introduction.
Avant testified that in 2000 and 2001, Avila supplied him with approximately 3 to 4 pounds of methamphetamine and 5 to 6 kilograms of cocaine per month, as well as a total of 500 pounds of marijuana. Avila sold these drugs to Avant on a consignment basis. Avila would deliver the drugs himself or have someone else deliver them, often using hidden compartments in automobiles to conceal the drugs.
Nava-Rubio testified that Avila, who was living in Chicago, asked Nava-Rubio to sell drugs for him in Indiana and provided him with the drugs on consignment. Avila or someone working for him — such as Hilario Espinoza-Sarco — would transport the drugs to Indiana using hidden compartments. Over the course of their relationship, Avila supplied Nava-Rubio with over 100 pounds of methamphetamine, 20 to 30 kilograms of cocaine, and 300 to 400 pounds of marijuana.
The government also used Nava-Rubio's testimony to authenticate and explain sixteen of the intercepted telephone calls between Avila and Nava-Rubio that were introduced into evidence and played for the jury. In one of the telephone calls, Avila and Nava-Rubio discussed using a hidden compartment in Avila's car to transport drugs. In other calls, Nava-Rubio and Avila discussed payments for drugs that Avila had fronted to Nava-Rubio. Nava-Rubio and Avila also discussed Nava-Rubio selling the drugs Avila had provided him to a "white guy."
As its final witness, the government called Sergeant Dean Wildauer. Wildauer, a member of the Indiana State Police criminal interdiction team, testified to the typical use of hidden compartments in drug trafficking operations.
Avila opted not to testify or present any evidence. He was sentenced to 396 months' imprisonment and ten years of supervised release. Avila appealed his conviction and sentence.
Avila raises three issues on appeal. First, he argues that there was a fatal variance between the conspiracy alleged in the indictment and the proof adduced at trial. Second, he argues that the testimony of several witnesses was irrelevant and unduly prejudicial. Specifically, he challenges the testimony of Sergeant Wildauer and statements of several witnesses relating to Avila's guilt. Avila claims that the cumulative effect of these errors merits reversal. Finally, Avila claims that the district court erred in calculating the sentencing range by relying on an incorrect offense level and misinterpreting Avila's criminal history. Each issue was discussed in turn (under legal reasoning.)
Ten years of supervised release
Variance Claim
To obtain a conspiracy conviction against a defendant, the government must prove that (1) two or more people agreed to commit an unlawful act, and (2) the defendant on trial knowingly and intentionally joined in the agreement. Thus, two or more individuals conspired together if the evidence demonstrates that they "embraced a common criminal objective," even if they did not know each other or participate in every aspect of the crime. Defendants who argue that the evidence at trial established the existence of not one conspiracy but many often assert that a "fatal variance" exists between the crime charged and the proof at trial.
Avila makes such a challenge here. He argues that a fatal variance exists in this case because the government presented evidence at his trial that was relevant only to a conspiracy that he did not join. For example, he points to testimony of Agents Burkhart and Reeves regarding drugs seized or purchased in controlled buys from other Mexican nationals in the Indianapolis area with whom Avila claims he shared no common goal or purpose.
"A variance arises when the facts proved by the government at trial differ from those alleged in the indictment." United States v. Stigler, 413 F.3d 588, 592 (7th Cir.2005). The court treats a conspiracy variance claim as nothing more than a challenge to the sufficiency of the evidence supporting the jury's finding of a conspiracy.
Thus, to prevail Avila must show that (1) the evidence at trial was insufficient to support a finding that he belonged to a single conspiracy, and (2) he was prejudiced by the variance. Under ordinary circumstances, "[s]ufficiency of the evidence challenges rarely succeed because we owe great deference to the jury's verdict." United States v. Melendez, 401 F.3d 851, 854 (7th Cir.2005). In this case, Avila faces an even higher burden because he failed to move for a judgment of acquittal. Therefore, the court’s review is for plain error, and it will reverse Avila's conviction only if a miscarriage of justice occurred "`of such magnitude that [Avila] probably would have been acquitted absent the error.'"
Avila argues that his conviction must be reversed because (1) there was insufficient evidence to show that he belonged to any conspiracy, and (2) he was prejudiced by the admission of evidence of a large-scale conspiracy that he did not join. For the reasons that follow, the court rejected both of his arguments.
Whether Sufficient Evidence Established that Avila Joined a Single Conspiracy
In order to prove that Avila participated in a conspiracy, the government must prove that he knowingly and intentionally joined in an agreement with one or more other individuals to commit an unlawful act. The court has to recognize that the sale of drugs, without more, does not constitute a conspiracy because the sale itself is a substantive crime. Thus, "the government must prove that the defendant conspired to commit some crime beyond that agreement to sell drugs."
Proving that Avila joined the conspiracy alleged in the indictment does not require that the government prove he conspired with the individuals named in the indictment. The key to proving a conspiracy is that the defendant joined the agreement, not the group. Thus, the government need not establish with whom the defendant conspired. It need only prove that the defendant conspired with anyone to commit the crime charged in the indictment.
All that is necessary to establish a drug distribution conspiracy is an understanding related to the subsequent distribution of narcotics. The government need only show an agreement that goes beyond the individual sale between buyer and seller. Here, there is substantial evidence that Avila expected and encouraged Avant and Nava-Rubio to redistribute the drugs he had provided.
Whether Avila Was Prejudiced by Evidence of a Conspiracy He Did Not Join
Avila claims that he was prejudiced at trial because the prosecution presented evidence that was relevant only to a conspiracy that he did not join. Avila cites the following to support his claim: (1) testimony of Agent Burkhart that a large-scale drug organization of Mexican nationals existed in Indianapolis and that the FBI had seized large quantities of drugs from numerous members of that organization; (2) testimony of Agent Reeves that he had made several undercover drug purchases from Soto-Nava on a consignment basis; and (3) statements by Burkhart, Reeves, Avant, and Nava-Rubio that Avila was working in a "drug dealing enterprise."[7] Avila argues that he was prejudiced by the inclusion of this inadmissible evidence in the government's case. He also argues that the errors affected his sentence.
Regardless of whether this evidence was admissible, however, Avila cannot succeed on his claim because he did not suffer any prejudice from its introduction at trial. First, the court holds that Avila's conviction was not a result of prejudice from the irrelevant evidence. It is highly unlikely that Avila would have been acquitted had Agents Burkhart and Reeves been prevented from testifying about these drug transactions or seizures. In sum, the court finds ample support for the jury's verdict that Avila was a member of the conspiracy charged in the indictment.
In his opening statement, Avila's counsel claimed that this was a case of mistaken identity. He conceded that there was significant evidence of a conspiracy, but he argued that Avila had never had contact with Nava-Rubio and that he had no role in the alleged conspiracy.
Avila claims that the government failed to meet its burden at trial because it did not prove that he conspired to commit some crime beyond an agreement to sell drugs to Avant and Nava-Rubio. He also implies that the "single design or purpose" defining a conspiracy must be more specific than simply to further distribute drugs.
Avila claims that he was prejudiced at trial because the prosecution presented evidence that was relevant only to a conspiracy that he did not join. Avila cites the following to support his claim: (1) testimony of Agent Burkhart that a large-scale drug organization of Mexican nationals existed in Indianapolis and that the FBI had seized large quantities of drugs from numerous members of that organization; (2) testimony of Agent Reeves that he had made several undercover drug purchases from Soto-Nava on a consignment basis; and (3) statements by Burkhart, Reeves, Avant, and Nava-Rubio that Avila was working in a "drug dealing enterprise."[7] Avila argues that he was prejudiced by the inclusion of this inadmissible evidence in the government's case.
Avila also challenges the testimony of several government witnesses as irrelevant and unduly prejudicial.
Avila's final arguments on appeal involve his sentence. He claims that his sentence was based on an incorrect Guidelines range, and that the district court improperly calculated his criminal history points.
United States Court of Appeals, Seventh Circuit
United States v Martin Avila
No. 07-2404
Source; https://scholar.google.com/scholar_case?case=6038745042840307552&q=Avila+&hl=en&as_sdt=2006
