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United States v. Marchan

United States Court of Appeals, Seventh Circuit

August 13, 2019

United States of America, Plaintiff-Appellee,
v.
Mauricio Marchan, Defendant-Appellant.

          Argued May 16, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17 CR 00005-2 - Gary Feinerman, Judge.

          Before BAUER, HAMILTON, and ST. EVE, Circuit Judges.

          BAUER, CIRCUIT JUDGE.

         Following a jury trial, Mauricio Marchan was convicted of one count of possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of distribution of 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1). Marchan appeals his conviction arguing that the trial proceedings were replete with errors and, as a result, he was denied a fundamentally fair trial. After considering the events at trial, we believe that the district court judge diligently presided over the trial, but to the extent any errors were made, they were harmless. Accordingly, we affirm.

         I. BACKGROUND

         In the early evening of January 4, 2017, Pedro Chavelas, a government informant, met with Victor Ramirez, who had agreed to facilitate Chavelas's purchase of two kilograms of cocaine. The two met in a Target parking lot in Chicago's Archer Heights neighborhood. After a brief recorded discussion, Ramirez and Chavelas met with Marchan who informed them the cocaine was with "[t]he guy in the little white car." After Chavelas confirmed that the cocaine was present, agents moved in.

         Marchan, Ramirez, and the "guy in the little white car" ("Moreno"), were arrested. Agents searched the white car and recovered a kilogram of cocaine. Agents also seized cell phones from Marchan, Ramirez, and Moreno. An examination of telephone records showed multiple calls between Ramirez and Marchan and Marchan and Moreno leading up to their arrest.

         On September 14, 2017, a grand jury returned a superseding indictment charging Marchan with one count of possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of distribution of 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). On March 5, 2018, his jury trial began.

         Before trial the government submitted a Santiago proffer purporting to show a conspiracy to distribute cocaine. In his objection Marchan pointed out that, under this circuit's precedent, a single narcotics transaction, where only a buyer-seller relationship exists, is not enough to establish a conspiracy See United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010). Thereafter the government withdrew its proffer after deciding not to call Ramirez, upon whose testimony the proffer was largely based.

         At trial the government produced a multitude of witnesses: Special Agent Billy Conrad ("SA Conrad"), who testified about some of the surveillance conducted during the operation; Dr. Catalina Johnson (the "Translator"), who translated the Spanish language audio made by Chavelas's hidden recording device; Task Force Officer Francisco Gomez ("TFO Gomez"), who discussed the pending transaction with Chavelas and monitored the transaction as it occurred; and the Investigations Case Agent Owen Putman ("Agent Putman"), who testified about how Chavelas came to be a government informant and the cooperation agreement.

         When Chavelas was called to testify he spoke about his cooperation agreement with the government, the government's promise to recommend a sentence reduction, his status as an illegal alien, and the government's protection against deportation. When Chavelas testified about the transaction, he described his participation in the arrest of Ramirez, Marchan, and Moreno. He also walked the court through the surveillance video and the recorded conversations. On cross-examination, Chavelas admitted that he had only heard the audio recording three times and not until over a year after they were made. He also stated that he heard phrases that were not transcribed.

         Next, the government called Special Agent Adam Stachecki ("SA Stachecki"), who was one of the arresting officers, to identify Marchan. SA Stachecki also testified that he personally recovered the cocaine from the white car. Next, Group Supervisor Colin Dickey ("Supervisor Dickey"), testified that he observed the surveillance operation and on cross-examination discussed the importance of searching an informant before any coordinated transaction. Finally, Intelligence Analyst Gabriella Perez ("Analyst Perez"), introduced various charts and records pertaining to Marchan and Ramirez's telephone calls. The defense introduced a stipulation that no fingerprint analysis was performed.

         Following the close of evidence but before deliberations, the parties agreed that the Spanish language recording would not be given to the jury; only the translated transcript would be provided. However, the jury later requested the audio ...


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