United States v. Chavez

12 F.4th 716

UNITED STATES of America, Plaintiff-Appellee,

v.Manuela CHAVEZ, Defendant-Appellant.

No. 20-1465

United States Court of Appeals, Seventh Circuit.

Argued April 21, 2021

Decided September 1, 2021

Stuart D. Fullerton, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Matthew J. Madden, Attorney, Matthew J. Madden, Attorney At Law, LLC, Chicago, IL, for Defendant-Appellant.

Before Flaum, Scudder and Kirsch, Circuit Judges.

Kirsch, Circuit Judge.

Manuela Chavez and her aunt owned a clothing store on the south side of Chicago where they sold socks and t-shirts out of the front and kilogram quantities of heroin and cocaine out of the back. In 2015, one of their customers started cooperating with federal law enforcement; eventually, Chavez was indicted for conspiracy to distribute and to possess with intent to distribute heroin and distribution of heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1). Chavez proceeded to trial where the cooperator's testimony and videos he had recorded in the store were key pieces of evidence in the government's case. The jury convicted Chavez on both counts, and she was sentenced to 108 months’ imprisonment.

Chavez now appeals her conviction and her sentence. She argues that the prosecutor, during the rebuttal portion of closing argument, made a litany of improper statements vouching for the informant's truthfulness, maligning her defense counsel, and inflaming the jury's fears. Those comments, Chavez continues, both individually and collectively deprived her of a fair trial. She also argues that she must be resentenced because the district court relied on inaccurate information in determining her sentence.

We find no reversible error, either at her trial or during sentencing, and therefore affirm.

I

Background . This case started with a narcotics investigation of Willie Slater in early 2015. On August 12, 2015, federal investigators surveilling Slater executed a traffic stop, which prompted Slater to realize that he was under federal investigation. Slater met with FBI agents and decided to cooperate to get out in front of the investigation into his actions. He turned over 812 grams of heroin to the agents that he said he had received in Roma III, a clothing store located on the south side of Chicago owned and operated by Manuela Chavez and her aunt (and eventual co-defendant) Rosalinda Perez.

The agents formulated a plan for Slater to record various aspects of his drug transactions at Roma III. Slater ultimately made a total of five recordings for law enforcement. Four of those recordings captured Slater delivering money to the store—on August 27, September 2, September 10, and September 21, 2015—totaling approximately $73,000 (of government funds). One recording, from August 28, 2015, showed Chavez giving Slater a package of heroin in the back room of Roma III. Generally, law enforcement surveilled Roma III as Slater entered. After each recording, Slater reconvened with agents and gave a brief report of what had occurred.

The August 27 and 28, 2015 Interactions . Two of Slater's recordings are particularly relevant to this appeal. On August 27 at Roma III, Slater delivered $12,800 to Perez. Perez complained that Slater's payment was late and that she was concerned about the late payment because her supplier would "have [her] throat" and "put [her] head on a platter." Slater told Perez that he needed to talk about the heroin that he had picked up from Roma III earlier that month, which he referred to as the "twins," and indicated that the kilogram he had purchased was short. Perez responded that she was not sure she would be able to do anything about the missing drugs.

On August 28, investigators arranged for Slater to pick up heroin at Roma III. Equipped again with recording devices, Slater returned to the store. Once there, Perez told Slater to go with "her"—Chavez—to the back office. Chavez and Slater went to the back office, where Chavez pulled out a brick-sized package wrapped in brown paper and tape. Chavez placed the package into a shoe box, covered it with brown paper, and placed the box into a black plastic bag. Chavez and Slater then returned to the front of the store. By that point, Perez had moved to the checkout counter. Slater took a pair of socks off the display near the counter and paid Perez for them, and Perez put the socks in a different black plastic bag. Slater then left with both black plastic bags.

Following this handoff, Slater reconvened with the agents. Slater told them he had received the drugs from "Lita"—a nickname for Chavez. According to FBI Special Agent Christopher Hedges, Chavez had not come up in the investigation until this August 28 handoff.

Indictment . A grand jury charged Perez and Chavez with conspiracy to distribute and to possess with intent to distribute heroin in violation of 21 U.S.C. § 846 and with distribution of heroin in violation of 21 U.S.C. § 841(a)(1). Following various pretrial motions and rulings by the district court, Perez pleaded guilty. Chavez proceeded to trial.

Trial . The evidence at trial principally consisted of testimony from law enforcement officers and the informant Slater, as well as the recordings Slater made at Roma III on August 28 depicting the drug transaction and his interaction with Chavez. Chavez argued that the government could not show that she knew what was in the package she gave to Slater on August 28, except through Slater's unreliable testimony. She contended that Slater was lying to appease the government, which had offered him a lenient plea deal in relation to his own extensive drug distribution crimes.

Slater testified that he had been selling drugs since he was 12 years old (he was 41 at the time of trial) and had been convicted of various felonies, including a cannabis conviction in 1994, a firearms conviction in 1996, another cannabis conviction in 2003, and two other narcotics-related convictions in 2004 and 2011. He had been purchasing large quantities of drugs at Roma III from someone named Jose until 2012, when Jose died. At that point Perez, Jose's girlfriend, became his supplier of kilogram quantities of cocaine and heroin. Chavez worked with Perez to distribute drugs to Slater up until he began cooperating with the FBI. During this time, Slater picked up drugs from them once or twice a week depending on how quickly he could sell his supply. Between 2012 and 2015, Chavez had provided Slater with drugs on four to seven occasions. Slater also stated that Chavez told him on those occasions what drug he was receiving—brown for heroin or white for cocaine. When Slater dropped off money to Chavez, he instructed her to tell Perez how much cash he had given her. He sometimes showed Chavez the actual cash.

Slater next discussed his cooperation with the government. Around the time Slater began cooperating, he had picked up heroin from Roma III and returned to an apartment to unpack it. As he unpacked it, he noticed it was short. Although the timing is unclear from his testimony, Slater said that at that point he decided to cooperate with the FBI and turned the drugs over without taking any himself.

Finally, the government shifted its focus to Slater's plea agreement in his own criminal case. Slater stated that he was testifying pursuant to a plea agreement in his own heroin and cocaine drug trafficking case, in which he had already pleaded guilty but had not yet been sentenced. He stated that as part of that plea agreement, he agreed to testify truthfully in Chavez's trial. Slater additionally testified that he understood the crime to which he had pleaded guilty carried a potential sentence of five to 40 years’ imprisonment, that his sentencing guidelines range would be 360 years to life, and that because of his cooperation the government would recommend a ten-year sentence.

On cross-examination, defense counsel impeached Slater on several issues. First, defense counsel directed Slater to his grand jury testimony, in which he stated that he had "never discussed drugs with" Chavez. Counsel pointed out that Slater had testified at trial, however, that at times Chavez would tell him whether he was receiving "brown" or "white." Slater responded that he meant he had never discussed prices of drugs with Chavez. Defense counsel next asked why Slater, although he had met with the government many times to discuss Perez and Chavez during his cooperation, never told the government that he and Chavez discussed "brown" or "white" until shortly before trial. Slater disagreed with this timeline, saying that he had mentioned the terms "brown" or "white" to someone with the FBI but he did not know who he had told. Defense counsel then pointed out that the investigators said that Slater had not raised that point until a few months before trial, and Slater responded that he guessed the agents were wrong.

Defense counsel next focused on Slater's testimony that he had received drugs from Chavez on four to seven occasions. Slater had testified before the grand jury that Chavez had given him drugs four to five times. Counsel also questioned why Slater had not told investigators this during their initial meetings, but Slater did not give a clear response. Counsel similarly pointed out that Slater had testified before the grand jury that he had given Chavez money for drugs on four or five occasions, but then testified at trial that it had been ten occasions. Counsel also emphasized that none of Slater's previous statements, either to investigators or before the grand jury, referenced him showing Chavez any cash.

Defense counsel also discussed Slater's plea agreement, pointing out that Slater had admitted to distributing more than 100 kilograms of heroin and at least 30 kilograms of cocaine. Slater admitted, among other things, that if he received a guidelines range sentence of 30 years, there was a possibility that he might die in prison.

Finally, Slater was cross-examined on the heroin that...