BAUER, Chief Judge.
Feilberto Flores, Angel L. Fontanez, and Amador Rodriguez ("defendants") are three forcibly retired entrepreneurs. Like many successful entrepreneurs, they ran a well-organized commercial enterprise and made a substantial profit.
The facts of this case read like a poor takeoff of a James Bond movie. This sordid tale includes such clever gadgets as hidden, electronically-controlled drug compartments custom-built into cars, beepers, mobile telephones, and hidden electronic transmitters and tape-recorders. Also a part of this criminal story were code words used to disguise references to narcotics during telephone conversations, and a stash apartment, a place that contained little else but a stockpile of narcotics and items used to package and distribute narcotics.
From the summer of 1988 until their arrests in October 1990, Flores and Rodriguez engaged in a cocaine operation that was responsible for moving at least 1500 kilograms of cocaine on the streets of Chicago. At their trials, cohort Carlos Cabral testified for the prosecution. Cabral's drug-dealing activities with Flores and Rodriguez stretched back to at least the summer of 1988. During those initial deals, Flores and Rodriguez each received multiple kilograms of cocaine from Cabral for which they paid him substantial amounts of money. Over the next two years, Flores and Rodriguez dealt drugs with Cabral hundreds of times. Eventually, their roles switched as Flores and Rodriguez began supplying drugs to Cabral who then would sell the drugs on their behalf.
By the summer of 1990, Fontanez had joined the operation. Cabral testified that Fontanez worked with Flores in dealing kilogram quantities of cocaine. Cabral said that he first saw Fontanez in the summer of 1990, when Fontanez accompanied Flores to a meeting with Cabral. Cabral stated that at this meeting he handed a kilogram of cocaine to Fontanez. Cabral also testified that Fontanez was present at drug transactions involving Flores or Rodriguez and Cabral on four or five occasions between the summer of 1990 and October 1990. In a meeting with Cabral in October 1990, Rodriguez described Fontanez as a "trusted worker" who had
Cabral testified to eleven specific cocaine transactions by Flores, Fontanez, and Rodriguez during the three months preceding their arrest. Each delivery consisted of six to thirteen kilograms of cocaine.
Over the next few days, Cabral recorded telephone conversations with and led FBI agents to his cocaine customers. The FBI seized additional money and cocaine from those individuals. Cabral also had several tape-recorded conversations with Flores, and one with Rodriguez, regarding the distribution and sale of cocaine. During these conversations, which were played and explained to the juries, Flores and Rodriguez used code words to mask references to their illegal activities. For example, they referred to cocaine as "cars" and "roast pork." Flores made arrangements with Cabral for the return of the money and unsold cocaine (the same money and cocaine seized by the FBI at Cabral's arrest). Both Flores and Rodriguez talked to Cabral about the distribution of the next shipment of cocaine, which was to take place a few days later.
Flores and Cabral scheduled a meeting for the evening of October 4, 1990. Cabral reported to Flores that he had six "cars" to return to Flores. Flores set the meeting for 6:30 p.m. at a 7-11 store and explained that he was "waiting for my worker," which Cabral understood as Angel Fontanez.
To prepare Cabral for the meeting, FBI agents placed six kilograms of cocaine in the trunk of Cabral's car and placed two boxes full of paper strips (to pass for money that Cabral owed Flores for the other seven kilograms) in Cabral's back seat. The agents also provided Cabral with an electronic transmitter and a recording device so that they could monitor and record the meeting. Prior to Cabral's arrival at the 7-11, other FBI agents stationed in the area noticed two cars following each other very closely, a gray Lincoln and a tan Buick Riviera with dealer plates. The cars drove past the 7-11 and turned down a nearby alley. Earlier that day, the agents had spotted the same Lincoln at a car lot owned by Flores and at which Rodriguez worked.
When Cabral arrived at the 7-11, he did not see Flores, so he called him. Shortly after this call, Fontanez approached Cabral's car on foot and climbed into the front seat. Fontanez and Cabral had a brief conversation about the cocaine and money that Fontanez was to receive. Fontanez retrieved the boxes of fake money from the back seat while Cabral took out the six kilograms of cocaine from the trunk. Fontanez told Cabral that Flores had not allowed him to use a car to pick up the drugs and the money. Fontanez then took the packages in his arms, walked across the street, stopped briefly at a nearby bench, and rearranged his load before heading down an alley.
FBI agents followed Fontanez. FBI Special Agent Scott Jensen yelled to Fontanez as he was entering a second-floor apartment by way of a rear, exterior staircase. Jensen ran up the staircase in pursuit of Fontanez. When he reached the second floor landing, Jensen looked into the door of the apartment and spotted the packages containing the cocaine
After arresting Flores and Fontanez, the FBI agents conducted a protective sweep to make sure that no one else was in the apartment. With the area secured, the agents obtained and executed a search warrant for the apartment. In their search of the apartment, which had been rented by Fontanez since February 1990, the agents found the six kilograms of cocaine that Fontanez had just brought in with him, approximately 1.5 additional kilograms of cocaine, and 158.77 grams of heroin. In one of the bedrooms of the apartment, the agents found three packages of cocaine under the bed, two plastic baggies filled with cocaine underneath a small dresser, and an Ohaus triple-beam scale, the type of scale often used to weigh narcotics. In the dresser, the agents discovered a large stash of empty plastic baggies of the kind commonly used to package and distribute narcotics. They also found a handwritten note that contained numbers which indicated the conversion from grams to ounces. In the kitchen, the agents found more boxes of plastic baggies, the six kilograms of cocaine that Fontanez brought in with him, and no food, other than a bottle of champagne and half a wedding cake in the refrigerator. From the dining room table at which Flores had been sitting when Jensen first looked in the apartment, the agents recovered a large wad of cash, a mobile telephone, and a set of keys that fit a tan Buick Riviera that was parked out front of the apartment building. The tan Buick was one of Flores' four cars into which Cabral had installed a hidden, electronically controlled secret compartment, and was the same car the surveillance agents had seen driving by the 7-11 just before the Cabral-Fontanez meeting. In the other bedroom of the apartment, the agents' found a small, empty box marked "Ohaus" and other boxes that contained documents with Amador Rodriguez's name and, in some cases, signature. These documents included car titles, other official documents, and letters. The agents also seized $5,400 in cash from Flores' pocket.
On October 5, 1990, the day after the arrest of Flores and Fontanez, Rodriguez contacted Cabral.
Cabral met with Rodriguez later that day. FBI agents watched that meeting and monitored an electronic transmitter worn by Cabral during the meeting. Rodriguez began by expressing his suspicion that Cabral was working with the government, and told Cabral that he would soon learn from Flores' lawyers if that were so. In a wily strategic maneuver, Cabral suggested that Fontanez might be the informant. Rodriguez rejected that suggestion and explained that Fontanez had been a trusted worker for a long time. Inexplicably, Rodriguez repeated his suspicions, but then threw caution to the wind and carried on as if Cabral posed no threat to his criminal enterprise. Rodriguez refocused his attention on matters he obviously viewed as more important: the current status of his cocaine business. He did this by talking to Cabral about the distribution of a 25-kilogram shipment of cocaine. Like any other commercial enterprise that has lost the services of two highly-valued workers (here, Flores and Fontanez), Rodriguez had to rely on those who, like Cabral, were still able to contribute their labor to the business. Rodriguez explained that if Flores' lawyers said that Cabral was "okay," the two of them would work together in distributing the 25 kilograms. Cabral and Rodriguez spoke by phone the next day, October 6, 1990, and discussed the details of Flores' and Fontanez's arrest.
Flores and Fontanez were tried together. Rodriguez was tried separately. All three were found guilty and sentenced. All three appeal.
Flores, Rodriguez, and Fontanez raise several issues on appeal. None impel a reversal.
A. Conflict of Interest of Trial Counsel
Flores, Rodriguez, and Fontanez all claim that their right to conflict-free trial counsel was violated. Rodriguez and Flores — as their enhanced sentences reveal — have a long history of criminal activity that precedes their cocaine distribution business in this case. Each needed lawyers to represent them in their prior run-ins with the law. In this case, they needed lawyers again. So, like sick patients who call up longtime family doctors, they contacted attorneys who had represented them before. Potential conflict of interest problems developed, however, as the three defendants and their attorneys played a virtual musical chairs game of attorney-client relationships. The lawyers chosen to represent Flores and Fontanez, respectively Michael Green and Roberta Samotny, represented Rodriguez in prior, unrelated criminal proceedings. Further, Rodriguez's counsel, Glenn Seiden, initially represented Fontanez in the current case then switched to Rodriguez. The government asked the district court to disqualify all three lawyers because of alleged actual and potential conflicts of interest. The court held a hearing on the matter pursuant to Federal Rule of Criminal Procedure 44(c).
At the hearing, the district court asked the defendants and their respective attorneys about the alleged conflicts. The court questioned each attorney to make sure he or she had explained the problem to their respective clients. The court then asked each defendant if he wanted to continue with his current counsel. The court's questioning of Flores went as follows:
January 31, 1991 Transcript at 13-15. Next, the court questioned Samotny and Fontanez. That exchange went as follows:
Id. at 19-21. Finally, the court questioned Seiden and Rodriguez:
Id. at 25-26. The district court respected the expressed preferences of each defendant and declined the government's invitation to intrude into the defendant's counsel of choice. Id. at 32. The court concluded that a severance was the best way to deal with the situation and therefore scheduled a separate trial for Rodriguez. Id.
On appeal, the government claims that Flores, Fontanez, and Rodriguez waived their right to conflict-free counsel by their answers at the Rule 44(c) hearing. The defendants counter by arguing that the district court should not have accepted their waivers because their waivers were not knowingly or intelligently made. They charge that the district court failed to make a detailed inquiry into how the conflict of interest might relate to the individual defendants and note that the defendants' answers were usually only one or two words. These arguments lack merit.
First of all, there is no requirement that the district court follow some pre-ordained, detailed script when eliciting a criminal defendant's waiver of the Sixth Amendment right to conflict-free counsel.
The district court in this case satisfied these standards. The transcript of the Rule 44(c) hearing reveals that the district court carefully questioned each attorney and each defendant about potential and actual conflicts created by the prior representation of co-defendants. After the district court explained the right to conflict-free counsel, each defendant made clear that he wanted to stick with his current attorney.
We note that the district court must recognize a presumption in favor of a defendant's counsel of choice. Wheat v. United States, 486 U.S. 153, 164, 108 S.Ct. 1692, 1699, 100 L.Ed.2d (1988). The district court, with this presumption in mind, chose to respect the decision of the defendants. We do
The defendants' other argument — that their waivers are not valid because most of their answers at the Rule 44(c) hearing consisted of only one or two words — is also without merit. In United States v. Kladouris, 964 F.2d 658 (7th Cir.1992), the criminal defendant waived her right to conflict-free counsel by answering the district court with such brief answers as: "Yes, sir.;" "Yes, sir.;" "No, I don't, because I'm not.;" "Yes, sir.;" and "No." Id. at 666-667. We affirmed the district court's decision that such a waiver was valid and affirmed the defendant's conviction. Similarly, we affirm here. The defendants answers at the Rule 44(c) hearing adequately expressed their preferences.
B. Section 2255 Petition of Flores and Rodriguez
While their direct appeals were pending, Flores and Rodriguez filed collateral attacks in the district court pursuant to section 2255. The district court denied relief. In their section 2255 petition, Flores and Rodriguez repeat their argument that their waivers of conflict-free counsel were neither knowing nor voluntary, but for different reasons than they gave before. They claim that their answers to the district court's questions at the Rule 44(c) hearing were prompted by their lawyers. Flores argues additionally that he was denied his Sixth Amendment right to counsel because his attorney was more interested in a civil case that was then pending in Hawaii.
We begin our analysis of this claim by noting that the grounds for relief under section 2255 are very narrow. Basile v. United States, 999 F.2d 274 (7th Cir.1993). Flores and Rodriguez can recover if they can show that their Sixth Amendment right to the effective assistance of counsel was violated.
Their argument on this ground fails for two reasons. First, their contention that their answers were prompted by their attorney is not supported by the record. Affidavits submitted by their attorneys before the district court refute their claim. The district court concluded — and we agree — that these claims are merely post-hoc rationalizations put forth by Flores and Rodriguez to persuade the district court to vacate their convictions. Flores and Rodriguez waived their right to conflict-free counsel in open court, of their own free will. We refuse to say that merely by alleging — with no other support — that their waivers were "prompted" by their attorney entitles them to a hearing on the issue. This is exactly the kind of whipsawing that the Supreme Court has explicitly cautioned against. Wheat, 486 U.S. at 161, 108 S.Ct. at 1698. Flores and Rodriguez have failed in their attempt to persuade us that their waivers were invalid.
The only other section 2255 issue is whether Flores has sufficiently alleged a Sixth Amendment ineffective assistance of counsel claim against Green because Green allegedly placed greater emphasis on his work in another client's civil case then pending in Hawaii than he did on Flores' criminal case.
To begin with, Flores presents nothing that suggests that Green's performance was deficient. Flores points to nothing Green should have or could have done that Green did not do and therefore fails to rebut our presumption that Green effectively assisted Flores. Biggerstaff v. Clark, 999 F.2d 1153 (7th Cir.1993). The abundant evidence against Flores also establishes that the result of the trial — Flores' conviction — was reliable.
Flores' allegation that Green placed more emphasis on a Hawaiian civil case than on Flores' criminal case adds nothing. All attorneys must make decisions about how to allocate their scarce lawyerly resources among the many clients they may represent at any given time. Evaluating such decisions is not within the province of this court. We ask only whether a lawyer — here, Green — performed adequately in this case. Our review of the record indicates that Green's performance was more than adequate and easily satisfies the requirements of the Sixth Amendment.
Both Flores and Rodriguez have failed to state a valid claim for relief pursuant to section 2255. Accordingly, we affirm the district court's decision to deny their section 2255 petitions.
C. Evidentiary Challenge by Rodriguez
Rodriguez argues that the district court erred when it allowed Cabral to testify that the cocaine distribution conspiracy extended as far back in time as 1988. He claims that such testimony was admitted in violation of Federal Rules of Evidence 403 and 404(b).
We review a district court's evidentiary rulings for abuse of discretion. United States v. Smith, 995 F.2d 662 (7th Cir. May 3, 1993). The test for admissibility of past act evidence under Rules 403 and 404(b) is whether:
United States v. Shields, 999 F.2d 1090 (7th Cir.1993) (citation omitted). Cabral's testimony in this case satisfies all four parts of this test. First, Rodriguez's membership in the cocaine distribution conspiracy was a matter in issue. Cabral's testimony establishes that Rodriguez was a part of the ongoing criminal conspiracy since at least 1988. Cabral's testimony did not relate to Rodriguez's propensity to distribute cocaine as a general matter. Second, Cabral's testimony, which reaches back some two years before the FBI arrested Rodriguez, is easily close enough in time to be relevant to events charged in this case. See Smith, 995 F.2d at 672 (evidence properly admitted where two years separated the prior act and the charged acts); United States v. Goodapple, 958 F.2d 1402, 1407 (7th Cir.1992) (evidence of transaction five years prior to those charged properly admitted). Third, Cabral's testimony supports a jury finding that Rodriguez
D. Challenge to Sentencing by Flores and Rodriguez
Flores and Rodriguez claim that the district court did not follow the appropriate procedures when it sentenced them. Specifically, they contend that the district court improperly enhanced their sentences without complying with the requirements of 21 U.S.C. § 851(b).
Flores' argument fails because he was sentenced under the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G"). Section 851 applies to persons convicted of an offense under Title 21 "when the government seeks to enhance the maximum penalty under the recidivist provisions of that statute. The statute does not apply, however, when sentencing is conducted under the Sentencing Guidelines and the defendant receives an increased sentence which is within the statutory range." United States v. Belanger, 970 F.2d 416, 417 n. 1 (7th Cir.1992) (citations omitted). The maximum penalty prescribed for a violation of two of the three statutes Flores was convicted of — sections 841(a)(1) and section 846 — is life imprisonment.
Rodriguez's section 851(b) argument fails as well, but for different reasons. The district court sentenced Rodriguez to life imprisonment and fined him $25,000 pursuant to 21 U.S.C. § 841(b)(1)(A).
Section 851(e) prohibits a defendant from challenging a conviction that is more than five years old.
E. Responsibility of Fontanez for Sentencing Purposes
Fontanez contends that the district erroneously considered drug transactions for sentencing purposes that were not part of his conspiratorial agreement and therefore not reasonably foreseeable to him. Fontanez insists that he is responsible for only thirty-one kilograms of cocaine, not the full amount of all drug transactions identified at trial. He thus claims that his Base Offense Level under the Guidelines should be 34, not 36 as the district court found.
This question does not produce an obvious answer. There is no written text that we can look to in order to discern the intent of the parties to the conspiratorial agreement. Cocaine conspirators do not ordinarily commit their mental agreements to written contracts. They tend to rely on informal oral contracts that are, by their very nature, difficult for district courts to reconstruct at sentencing.
Fortunately, the Guidelines provide a method for solving this problem. The Guidelines require district courts to sentence a criminal conspiracy defendant on the basis of all acts committed by the defendant for which the defendant "would be otherwise accountable." U.S.S.G. § 1B1.3. Application Note 1 defines conduct for which a defendant "would be otherwise accountable" as "conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant."
Fontanez argues that the district court failed to conduct the kind of individualized inquiry that we described in Edwards. 945 F.2d at 1399. In Edwards, we discussed the reasonably foreseeable standard at some length and directed district judges, when applying this standard, to set forth the reasons why the particular amount of drugs was reasonably foreseeable to the criminal conspiracy defendant. Id.
The district court complied with Edwards when it sentenced Fontanez. At sentencing and after giving both Fontanez and Assistant United States Attorney Sean Martin an opportunity to make their case, the court concluded as follows:
April 4, 1991 Sentencing Transcript at 9-10. This individualized inquiry by the district court satisfies Edwards. The district court's findings are not clearly erroneous. We affirm Fontanez's sentence.
The convictions and sentences of Flores, Rodriguez, and Fontanez are
F.R.Evid. 403. Rule 404(b) states as follows:
21 U.S.C. § 851(b).
21 U.S.C. 841(b)(1)(A).
21 U.S.C. § 841(b)(1)(A). The "preceding sentence" provides for fines of up to "$8,000,000 if the defendant is an individual or $20,000,000 if the defendant is other than an individual, or both." Id.
21 U.S.C. § 851(e).