00-3710 U.S. v. Viezca

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“We agree with Viezca that there are similarities between this case and Duff. Portions of Count one of the indictment in this case were worded much like the indictment in Duff, as it charged Viezca, Mendoza, and Guerrero with having ‘conspired and agreed with each other, and with others known and unknown to the Grand Jury, knowingly and intentionally to possess with intent to distribute cocaine.’ Additionally, as in Duff, the communications and interaction between Viezca and Albrecht, the government informant in this case, played a significant role in Viezca’s trial. We find an important difference in this case, however, that persuades us to conclude that the absence of a Sears instruction was not improper. From the district court’s initial description of the case to the venire, to the closing arguments of both the government and Viezca’s attorney, Viezca’s three-day trial focused on the sole issue of whether Viezca entered into an agreement with Mendoza and Guerrero to supply Albrecht with cocaine on an ongoing basis. Furthermore, unlike in Sears and Duff, the evidence presented at the trial did not necessitate that a Sears instruction be given to the jury. Although Viezca’s communications and interactions with Albrecht were presented to the jury, they were introduced to the jury in the specific context of demonstrating Viezca’s knowing agreement with Mendoza to distribute cocaine to Albrecht. Thus, we find that no reasonable jury could have concluded that Viezca agreed with Albrecht alone. Therefore, we conclude that the district court’s decision not to provide the jury sua sponte with a Sears instruction did not constitute an error, much less a plain error requiring reversal of Viezca’s conviction.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Manning, J., Kanne, J.