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09-3601 U.S. v. Gaytan

By: WISCONSIN LAW JOURNAL STAFF//August 15, 2011//

09-3601 U.S. v. Gaytan

By: WISCONSIN LAW JOURNAL STAFF//August 15, 2011//

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Narcotics
Distribution; sufficiency of the evidence

The evidence was sufficient to convict the defendant of distributing crack cocaine even though the confidential informant who made the controlled buys did not testify, and the video recordings failed to show any money or drugs changing hands.

“That the agents could not see the hand-to-hand transactions does not mean that the government had to call Worthen to connect the dots. In United States v. Tavarez, 626 F.3d 902 (7th Cir. 2010), we rejected a similar challenge to the sufficiency of the evidence in a controlled-buy case in which the confidential informant did not testify and ‘[n]one of the witnesses actually saw [the defendant] physically deliver [any drugs].’ Id. at 905-06. A surveillance video showed the informant entering the building where the transaction was to take place, and he later emerged with methamphetamine. Id. at 906. The defendant’s fingerprint was found on the bag containing the drugs, and the buy money was found in the pocket of a jacket in his bedroom closet. Id. The circumstantial evidence in this case is different but even stronger than that in Tavarez. Here, unlike in Tavarez, the controlled buys were fully captured on audio recordings. Gaytan’s own statements on the recordings, together with the physical evidence and the case agents’ testimony about the surrounding circumstances, unmistakably establish Gaytan’s guilt; this evidence is not susceptible of an innocent explanation. See United States v. Hendrix, 482 F.3d 962, 966 (7th Cir. 2007) (explaining that our focus is on what the jury could reasonably infer from the evidence, not farfetched theories about ways an informant could have obtained a controlled substance that lack evidentiary support). Even without Worthen’s testimony, the evidence was easily sufficient to convict.”

Affirmed.

09-3601 U.S. v. Gaytan

Appeal from the United States District Court for the Northern District of Illinois, Pallmeyer, J., Sykes, J.

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