In the
United States Court of Appeals
For the Seventh Circuit

Nos. 00-3519, 00-3520, 00-3747, 00-3781 &
01-1929

United States of America,

Plaintiff-Appellee,

v.
Douglas Martin, Melvin Alicea, Hector Carrasco,
Victor Alicea, and Victor Matias, Jr.,

Defendants-Appellants.

Appeals from the United States District Court
for the Western District of Wisconsin.
No. 00 CR 23--John C. Shabaz, Judge.

Argued March 1, 2002/*--Decided April 19, 2002


  Before Flaum, Chief Judge, Bauer and
Harlington Wood, Jr., Circuit Judges.

  Bauer, Circuit Judge. The defendants
were engaged in a conspiracy to
distribute cocaine in Sauk County,
Wisconsin./1 Several defendants elected
to go to trial and were found guilty by
their respective juries; others chose to
plead guilty. The district court imposed
sentences on each defendant. Almost all
of the five defendants before this court
appeal some aspect of their sentences,
and the others raise a litany of
additional issues related to their
trials. For the following reasons, we
affirm the verdicts and sentences for all
five defendants.

BACKGROUND

  The facts involve a rather long and
convoluted series of meetings,
statements, and transactions, most of
which might make for colorful background
information about the drug trade in
Wisconsin, but are not pertinent to the
issues on appeal. Therefore, we set forth
only the facts necessary to each issue
raised. Because some of the defendants
appeal the same issues we will proceed by
addressing each point of error raised and
note the resulting application of law to
each defendant’s individual challenge.
ANALYSIS

A. Apprendi Violations

  The defendants did not timely raise
Apprendi objections below, thus the
arguments were forfeited and we review
only for plain error. See, e.g., United
States v. Cooper, 243 F.3d 411, 415-16
(7th Cir. 2001), cert. denied, 122 S.Ct.
64 (2001). To determine if there was
plain error we apply a four-part test:
"(1) whether there was error at all, (2)
if so, whether it was plain, (3) whether
the error affected . . . substantial
rights, and (4) whether it seriously
affected the fairness, integrity, or
public reputation of the proceedings."
United States v. Robinson, 250 F.3d 527,
529 (7th Cir. 2001), cert. denied, 122
S.Ct. 215 (2001). The defendants don’t
make it over the first hurdle: "whether
there was an error at all." Robinson, 250
F.3d at 529.

  1.   Hector Carrasco (00-3747)

  Hector Carrasco was indicted on a single
count, for conspiring to distribute
cocaine, a Schedule II controlled
substance, in violation of 21 U.S.C. sec.
846. The indictment did not state the
amount of drugs Carrasco conspired to
distribute, although it did state the
substance, cocaine. The jury found
Carrasco guilty of the offense as charged
in the indictment. Carrasco was sentenced
to 97 months (just over 8 years) in
prison and 3 years supervised release.


  2.   Victor Alicea (00-3781)

  Victor Alicea was indicted on two
counts: for conspiring to distribute
cocaine, a Schedule II controlled
substance, in violation of 21 U.S.C. sec.
846, and for distributing a controlled
substance in violation of 21 U.S.C. sec.
841(a)(1). The indictment did not state
the amount of drugs Victor Alicea
distributed or conspired to distribute,
but it did name cocaine as the substance
distributed. The jury found Victor Alicea
guilty of both offenses. Victor Alicea
was sentenced to two concurrent sentences
of 120 months (two concurrent 10-year
terms, one for each count) and two
concurrent 3- year terms of supervised
release (one for each count).
  Since it was decided, Apprendi v. New
Jersey, 530 U.S. 466 (2000), has spawned
an endless number of appeals by
defendants seeking to determine and
expand its scope. These defendants
contend Apprendi requires the amount of
cocaine they conspired to distribute be
charged in the indictment and proven to
the jury beyond a reasonable doubt. In
this case, the district court in the
sentencing phase found Carrasco
accountable for 1,443.35 grams of cocaine
and Victor Alicea accountable for 1,626
grams of cocaine by a preponderance of
the evidence. Carrasco accurately notes
that the penalty provisions in section
841(b) are based on drug quantity. See 21
U.S.C. sec. 841(b) (providing for
penalties ranging from five years to life
depending on the type and amount of drugs
involved and if serious injury or death
resulted from the use of the substances).
Thus, possessing different types and
amounts of drugs can alter the sentence a
defendant faces. Id. Carrasco also
correctly observes that drug quantity
under Apprendi is an element--though not
in the technical sense of the word--of
the offense in section 841(b) that the
government should specify and prove.
Apprendi, 530 U.S. at 490; United States
v. Mietus, 237 F.3d 866, 874 (7th Cir.
2001); United States v. Bjorkman, 270
F.3d 482, 490-92 (7th Cir. 2001) (per
curiam) (holding that "Apprendi does not
rewrite or change the elements of any
federal offense; its does, however,
determine who must make particular
decisions, and what the burden of
persuasion must be."); but see United
States v. Sheppard, 219 F.3d 766, 767-69
& n.3 (8th Cir. 2000) (noting that
quantity is an element of a sec. 841
offense, but there is likely no Apprendi
problem if the sentence received is
within the "statutory maximum penalty for
sec. 841 offenses involving any quantity
of a Schedule II controlled substance")
(emphasis in original). In any event,
Carrasco and Victor Alicea’s arguments in
this situation are unavailing.

  Apprendi only requires "any fact that
increases the penalty for a crime beyond
the statutory maximum must be submitted
to a jury, and proved beyond a reasonable
doubt." Apprendi, 530 U.S. at 490
(emphasis added). If a drug amount is not
charged in the indictment and proven
beyond a reasonable doubt, "the statutory
maximum under sec. 841(b) is to be
determined without making any reference
to drug amount." United States v. Jones,
245 F.3d 645, 647-48 (7th Cir. 2001);
United States v. Westmoreland, 240 F.3d
618, 632 (7th Cir. 2001). Thus, "when a
defendant’s sentence does not exceed 20
years imprisonment--the maximum under
sec. 841(b) for possessing/distributing
the smallest amount of cocaine--Apprendi
is irrelevant." Robinson, 250 F.3d at
529. There is no error, plain or
otherwise, if the defendants’ sentences
do not exceed twenty years. Id.

  Hector Carrasco received just over 8
years and Victor Alicea drew two
concurrent sentences of 10 years. Neither
of the sentences exceed the maximum
sentence allowed (20 years) under section
841(b) when an amount of cocaine is not
charged and proven. See, e.g., id.;
Jones, 245 F.3d at 648-50. Could the
indictment have listed the amounts?
Certainly, but it is not required under
Apprendi. See, e.g., Robinson, 250 F.3d
at 527; Jones, 245 F.3d at 648-50. Should
the indictment have listed the amounts?
Probably, because it would have
undoubtedly reduced the defendants’
avenues of appeal and allowed their
sentences to be increased (based on drug
amounts)./2 See United States v.
Brough, 243 F.3d 1078, 1079-80 (7th Cir.
2001), cert. denied, 122 S.Ct. 203 (2001)
(noting that "a post-Apprendi indictment
should specify . . . the events listed in
sec. 841(b) [amount and type of drugs] on
which the prosecutor relies to establish
the maximum sentence.") (emphasis added);
see also Bjorkman, 270 F.3d at 491-92
(explaining the difference between the
"must" prove elements in sec. 841(a) and
"should" prove drug quantity in sec.
841(b)). Must the indictment list the
amounts and the government prove them
beyond a reasonable doubt? No, not when
the sentence a defendant receives does
not exceed the statutory maximum of 20
years for possessing or distributing the
smallest amount of a Schedule II
controlled substance. See, e.g.,
Robinson, 250 F.3d at 527; Jones, 245
F.3d at 648-50.

  Victor Alicea, in addition to the
argument advanced above, asserts that 21
U.S.C. sec. 841(b) is unconstitutional.
We have already determined that Section
841(b) is not unconstitutional. Brough,
243 F.3d at 1079-80 ("we now hold, that
there is no constitutional defect in the
design of sec. 841, and that there is no
impediment to convictions under the
statute as written."); see also United
States v. Collins, 272 F.3d 984, 988-89
(7th Cir. 2001).

B. U.S.S.G. sec. 2D1.1 Drug Quantity
Determination

  We review a district court’s factual
findings in applying the Sentencing
Guidelines for clear error. United States
v. Williams, 272 F.3d 845, 851-52 (7th
Cir. 2002), cert. denied, 122 S.Ct. 1339
(2002); United States v. Joiner, 183 F.3d
635, 640 (7th Cir. 1999). Under this
familiar standard, we review the district
court’s findings to determine if there is
any evidence in the record to support the
findings, and will reverse only if we
have a "’firm and definite conviction
that a mistake has been made.’" E.g.,
United States v. Miner, 127 F.3d 610,
614-15 (7th Cir. 1997) (citation
omitted). Reasonable estimates of drug
amounts based on the Presentence
Investigation Report (PSR), testimony,
and other evidence are permissible, while
speculation is not. Westmoreland, 240
F.3d at 630-32; Joiner, 183 F.3d at 640;
United States v. Jarrett, 133 F.3d 519,
530 (7th Cir. 1998).


  1.   Douglas Martin (00-3519)

  Martin argues that he never "intended"
or "agreed" to provide cocaine to Lisa
Templin, and he asserts that any comments
he made to that effect were the result of
one too many drinks or mere boasting.
(One frequently leads to the other in
many areas of life.) The district court
found 544.06 grams of cocaine
attributable to Douglas Martin and
sentenced him to 60 months (5 years) in
prison and 3 years supervised release.
The finding was based on the PSR,
conversations Martin had with others, and
remarks he made involving Templin. Martin
joined the conspiracy late, but moved up
in the ranks rather quickly to become
Victor Matias, Jr.’s "right hand man."
Victor Matias, Jr. was found to have
distributed some 7.7 kilograms of
cocaine, but the district court took into
account Martin’s late arrival and
attributed only a portion of that amount
to him. Martin told Templin that he could
obtain 500 grams of cocaine from Victor
Matias, Jr. The district court found this
statement credible because Matias, Jr.
dealt large amounts of cocaine and Martin
was his very close assistant. It was not
clear error for the district court to
find Douglas Martin accountable for at
least 544.06 grams of cocaine. See
Westmoreland, 240 F.3d at 630-32.

C. U.S.S.G. sec. 2D1.1(b)(1) Possession of
a Dangerous Weapon

  The district court’s application of a
sentencing guidelines enhancement is also
reviewed for clear error. See United
States v. Smith, 280 F.3d 807, 810 (7th
Cir. 2002); Bjorkman, 270 F.3d at 493;
United States v. Berthiaume, 233 F.3d
1000, 1002 (7th Cir. 2000); United States
v. Cain, 155 F.3d 840, 843 (7th Cir.
1998). Substantial deference is accorded
to findings based on credibility, which
are almost never clear error. See, e.g.,
United States v. Hickok, 77 F.3d 992,
1007 (7th Cir. 1996).

  Section 2D1.1(b)(1) provides: "If a
dangerous weapon (including a firearm)
was possessed, increase [the offense lev
el] by 2 levels." U.S.S.G. sec.
2D1.1(b)(1). Application Note 3 further
provides:

The enhancement for weapon possession
reflects the increased danger of violence
when drug traffickers possess weapons.
The adjustment should be applied if the
weapon was present, unless it is clearly
improbable that the weapon was connected
with the offense. For example, the
enhancement would not be applied if the
defendant, arrested at his residence, had
an unloaded hunting rifle in the closet.

U.S.S.G. sec. 2D.1.1, Application Note 3.
Based upon the language in section 2D1.1,
we have held that the government need
only demonstrate, by a preponderance of
the evidence, that the defendant
possessed the weapon during the relevant
period of drug activity. Bjorkman, 270
F.3d at 492-93. And "once the Government
meets its burden, the defendant must
demonstrate that it was clearly
improbable that the weapon was connected
to the offense." United States v. Booker,
248 F.3d 683, 689 (7th Cir. 2001);
Bjorkman, 270 F.3d at 492-93.


  1.   Melvin Alicea (00-3520)

  To the government’s knowledge the drug
conspiracy began in 1994 and lasted until
1999. Bureau of Alcohol Tobacco &
Firearms (ATF) records established that
Melvin Alicea purchased fourteen firearms
(thirteen handguns and one rifle) between
1995 and 1997. Melvin Alicea showed one
of his customers, Perry Zubeck, one of
the handguns he owned. Melvin also
threatened another customer, who he heard
had been talking to the police, stating,
"[talking] was a good way to get a bullet
in the head."

  2.   Victor Alicea (00-3781)

  Victor Alicea joined the conspiracy in
1995, and ATF records showed that Victor
Alicea bought a handgun in 1996. A
stainless steel .9 mm Ruger handgun with
a laser-aiming device was recovered from
Victor Alicea’s home. During the
sentencing hearing Adam Young, a regular
customer of Victor Alicea’s since 1995,
testified that during one occasion when
he went to Alicea’s home, Alicea showed
Young a stainless steel Ruger handgun
with a laser-aiming device. The gun was
later identified as the same one
recovered from Alicea’s home.

  The government argued that Victor Alicea
showed Young the weapon to deter Young
and anyone else from robbing him. Alicea
asserts that there is no "nexus" between
the firearm and the drug conspiracy
because no evidence establishes that the
weapon was "used" during the conspiracy.
In his brief Victor Alicea states that no
drugs were recovered from his home and
that there was no ammunition found in the
weapon. Melvin Alicea, in a similar vein,
argues that there is no evidence he
"brandished" or "displayed" a weapon
during a drug transaction.

  The defendants’ arguments misapprehend
the government’s burden; the government
need only demonstrate that the defendant
possessed a weapon during the drug
conspiracy. See, e.g., Booker, 248 F.3d
at 689. Then it is up to the defendant to
refute this claim by establishing that it
was clearly improbable that the weapon
was connected to the offense. Bjorkman,
270 F.3d at 493. Although the gun was not
found loaded or next to drugs at the time
it was recovered, that does not establish
that the weapon had no connection to the
conspiracy. See United States v. Adams,
125 F.3d 586, 596 (7th Cir. 1997)
(holding "the government is not required
to show that the weapon was present
during a specific drug trafficking
offense."); Cain, 155 F.3d at 843-44
(rejecting the defendant’s argument that
his possession of "the gun was unrelated
to the drug conspiracy"); see also United
States v. Cantero, 995 F.2d 1407, 1412
(7th Cir. 1993) (noting that "drug
dealers often carry weapons to protect
themselves and their large amounts of
drugs and cash."). The district court
found that both Victor Alicea and Melvin
Alicea did posses weapons during the
relevant period of conduct and it was not
clearly improbable that the weapons were
connected with the drug conspiracy. There
is no clear error in these findings.

D. U.S.S.G. sec. 3C1.1 Obstruction of
Justice

  In determining if the sentencing
enhancement was properly applied we
review the district court’s findings of
fact for clear error. E.g., United States
v. Carrera, 259 F.3d 818, 831 (7th Cir.
2001). The prosecution must establish
that the enhancement is applicable by a
preponderance of the evidence. United
States v. Ewing, 129 F.3d 430, 434 (7th
Cir. 1997). Section 3C1.1 provides:

If (A) the defendant willfully obstructed
or impeded, or attempted to obstruct or
impede, the administration of justice
during the course of the investigation,
prosecution, or sentencing of the instant
offense of conviction, and (B) the
obstructive conduct related to (i) the
defendant’s offense of conviction and any
relevant conduct; or (ii) a closely
related offense, increase the offense
level by 2 levels.

U.S.S.G. sec. 3C.1.1.


  1.   Douglas Martin (00-3519)

  Lisa Templin, after being confronted by
federal agents about her involvement in
the conspiracy, agreed to cooperate with
the agents and make controlled buys in
1999. Templin set up a controlled buy,
and the following day Victor Matias,
Jr.’s home was searched and he was
arrested. Evidently Matias, Jr. put two
and two together and called Hector
Carrasco, told Carrasco "Lisa" had
informed on him, and that Carrasco should
tell her to "knock it off." After posting
bond Victor Matias, Jr. and Douglas
Martin visited Lisa Templin at home.
Templin’s roommate answered the door and
Martin restrained her while Matias, Jr.
confronted Templin.

  Martin argues that "there is no direct
proof" that he was at the residence
because Lisa Templin only relayed what
her roommate told her happened and did
not see Martin herself. "[T]he Federal
Rules of Evidence do not apply at
sentencing hearings" and the judge may
consider information that would not be
admissible at trial, including
uncorroborated hearsay. Smith, 280 F.3d
at 810. The district court concluded that
Martin attempted to obstruct justice by
aiding and abetting Matias, Jr.’s efforts
to intimidate Lisa Templin and by
restraining Templin’s roommate. See
U.S.S.G. sec. 3C1.1, Application Note 9
("Under this section, the defendant is
accountable for his own conduct and for
conduct that he aided or abetted,
counseled, commanded, induced, procured,
or willfully caused."). The district
court’s findings are sufficient to impose
the enhancement and there was no clear
error.


  2.   Melvin Alicea (00-3520)

  In 1997, Michael Sutton was a
cooperating informant who made a series
of controlled buys from the defendants
wearing a recording device. In June 1997,
Melvin Alicea "heard" that Sutton might
have "said something [to the police]"
about their deals. Melvin told Sutton
that "[talking to the police] was a good
way to get a bullet in the head." Melvin
was found to have obstructed the
investigation by threatening Sutton.

  Melvin argues that in order for the
guideline to apply he would have to know
or believe than an investigation is
underway, otherwise there is no "willful"
violation. For support he cites United
States v. Oppendahl, 998 F.2d 584, 586
(8th Cir. 1993), which held the term
"’willfully’ [in U.S.S.G. sec. 3C1.1(A)]
should be reserved for the more serious
case, where misconduct occurs with
knowledge of an investigation, or at
least with a correct belief that an
investigation is probably underway."
However, this circuit has already ruled
that knowledge of an investigation is not
required for a "willful" violation to
occur. United States v. Snyder, 189 F.3d
640, 648 (7th Cir. 1999) ("It is clear,
however, that a defendant need not know
that he is under investigation at the
time of the obstructive conduct.");
United States v. Schmidt, 47 F.3d 188,
192 n.3 (7th Cir. 1995); United States v.
Polland, 994 F.2d 1262, 1269 (7th Cir.
1993); accord United States v. Jenkins,
275 F.3d 283, 288-89 (3d Cir. 2001). The
term "willful" does not mean "knowing" or
"aware," it means "intentionally" or
"deliberately." Jenkins, 275 F.3d at 287-
88 (holding that "[i]n view of the
language, structure, and context of
U.S.S.G. sec. 3C1.1, we believe the
ordinary meaning of ’willfully’ is
’deliberately or intentionally’"); cf.
Ewing, 129 F.3d at 434-35. Thus, a
defendant does not need to "know" or be
"aware" that an investigation is
underway, rather he need only
"intentionally" or "deliberately" impede
or attempt to obstruct justice for the
enhancement to apply. Jenkins, 275 F.3d
at 287-88.

  Accepting Melvin Alicea’s contention
would allow defendants to threaten
witnesses and informants with impunity if
they simply argue they did not know the
police were attempting to catch them
conducting dangerous illegal activity.
The obstruction of justice enhancement in
section 3C1.1 is not dependent on a
defendant’s subjective knowledge and its
scope is not so narrow; otherwise every
defendant would be able to avoid its
imposition by claiming lack of knowledge.
See Snyder, 189 F.3d at 648-49; Polland,
994 F.2d at 1269; U.S.S.G. sec. 3C1.1
(providing that the enhancement shall be
applied if: "(A) the defendant willfully
obstructed or impeded, or attempted to
obstruct or impede, the administration of
justice during the course of the
investigation, prosecution, or sentencing
of the instant offense of conviction")
(emphasis added); U.S.S.G. sec. 3C1.1,
Application Note 4 (listing conduct the
adjustment applies to including: "(a)
threatening, intimidating, or otherwise
unlawfully influencing a co-defendant,
witness, or juror, directly or
indirectly, or attempting to do so")
(emphasis added); Ewing, 129 F.3d at 435.

  Moreover, Oppendahl provides little
support for Melvin Alicea’s proposition
considering the district court’s finding
that Melvin made the threat because he
believed an investigation was underway.
Oppendahl, 998 F.2d at 586 (conceding
"misconduct occurs [when a defendant
obstructs or attempts to obstruct
justice] . . . with a correct belief that
an investigation is probably underway").
As the district court noted, Melvin
Alicea made a threat to "the confidential
informant, [or] at least the person to
whom Mr. Alicea believed to be a
confidential informant." The district
court’s findings fully support the
imposition of the enhancement and are not
clearly erroneous.

   3.   Victor Alicea (00-3781)

  Victor Alicea moved to suppress the
evidence obtained in the search of his
home on the grounds that he never gave
consent to search. Victor submitted an
affidavit in support of his motion
stating that the officers never asked for
consent to search and he never gave
consent to search. In the alternative,
Victor stated that if he gave consent, it
was not voluntary. Special Agent Paul
Byal testified to the contrary. In
addition to the affidavit, Magistrate
Judge Stephen Crocker heard testimony
from Victor at the evidentiary hearing.
The magistrate judge found that Victor
did consent to the search and
specifically that he did not believe Vic
tor’s assertion that he did not consent;
however, he also concluded that the
consent was not voluntary, based on the
stressful circumstances, and recommended
suppressing the evidence. The district
court found the consent to search was
voluntarily given and refused to suppress
the evidence.

  The enhancement may be imposed for:
"providing materially false information
to a judge or magistrate." U.S.S.G. sec.
3C1.1, Application Note 4(f). In the
perjury context, which is akin to
providing false information to a judge,
we have required the district court to
find the three elements of: (1) falsity;
(2) willfulness; and (3) materiality.
E.g., United States v. Brimley, 148 F.3d
819, 823 (7th Cir. 1998); see also United
States v. Dunnigan, 507 U.S. 87, 94
(1993). Whether the district court made
the appropriate findings is reviewed de
novo, and the district court’s factual
findings supporting the enhancement are
reviewed for clear error. United States
v. Gage, 183 F.3d 711, 715 (7th Cir.
1999).

  The district court made the requisite
findings, determining Victor Alicea "did
provide his consent [to search], it was
voluntary, and the Court believes that it
was willfully false and certainly
material to the issue at hand."
Nevertheless, Victor argues that there
was "no indication that Victor Alicea
willfully sought to mislead the court,"
therefore the enhancement should not have
been imposed. However, a district court’s
determination that a defendant’s
testimony was false is adequate to
support the enhancement. United States v.
Turner, 203 F.3d 1010, 1020 (7th Cir.
2000); Brimley, 148 F.3d at 822-24. The
application of the sentencing enhancement
based on Victor Alicea’s false testimony
was not clear error.

E. Violation of the Sixth Amendment Right
to Confrontation

  A district court’s limitation of cross-
examination is reviewed for an abuse of
discretion, unless it directly implicates
the core values of the Sixth Amendment
right of confrontation which we review de
novo. E.g., United States v. Neeley, 980
F.2d 1074, 1080 (7th Cir. 1992). Cross-
examination in order to establish
credibility, veracity, bias, or
motivation is a core concern; at the same
time, continuous, cumulative, or repeated
exploration of such issues is a
peripheral concern which the trial court
may curb at its discretion. E.g., United
States v. Nelson, 39 F.3d 705, 707-08
(7th Cir. 1994). "So long as cross-
examination elicits adequate information
to allow a jury to assess a witness’s
credibility, motives, or possible bias,
the Sixth Amendment is not compromised."
United States v. Scott, 145 F.3d 878, 888
(7th Cir. 1998) (emphasis added); United
States v. Saunders, 166 F.3d 907, 919
(7th Cir. 1999).


  1.   Victor Alicea (00-3781)

  At issue is the testimony of Justin
Maldonado. Maldonado testified that
between 1994 and 1999 he purchased
cocaine from Melvin Alicea, Johnny
Alicea, and Victor Matias, Jr. When
Maldonado was asked by Victor Alicea’s
attorney about selling cocaine he invoked
his Fifth Amendment right not to answer.
However, on re-direct examination by the
government Maldonado admitted he told the
police about his cocaine sales to others.

  Neither Melvin Alicea, Johnny Alicea,
nor Victor Matias, Jr. asserts a Sixth
Amendment violation based on Maldonado’s
invocation of his Fifth Amendment right.
Instead, Victor Alicea, who Maldonado did
not mention, asserts that he was denied
his right to confront his accusers by the
district court’s ruling sustaining the
government’s objection to further
questioning after the Fifth Amendment
protection was invoked. Victor Alicea
argues that by sustaining the
government’s objection, the district
court prevented him from exposing
Maldonado’s criminal activity, which the
jury could have used to weigh Maldonado’s
credibility.

  Putting aside the fact that Maldonado
never testified about Victor Alicea,
Victor Alicea’s Sixth Amendment right was
not violated by the district court’s
limitation of Alicea’s attorney’s
cumulative cross-examination into the
specifics of Maldonado’s drug sales. See
United States v. Williamson, 202 F.3d
974, 977-79 (7th Cir. 2000). The trial
transcript reveals that Victor’s attorney
throughly cross-examined Maldonado
inquiring about his many purchases of
cocaine, sale of cocaine and fake
cocaine, the government’s failure to
prosecute him for those prior acts, and
the government’s current deal with him
pertaining to this trial. (Tr., Aug. 1,
2000, a.m. session, at 101-106). Also, at
closing arguments Victor’s attorney
stated: "He [Maldonado] was passing off
just one more story, one more thing that
would help him out in keeping his record
of not being prosecuted for now seven
counts he still has open or seven
different people that he sold drugs to
that the government was aware of that
he’s not been prosecuted for." (Tr., Aug.
1, 2000, p.m. session, at 73-74). These
are the same facts that Victor claims he
was prevented from developing on cross-
examination.

  After all this testimony there is
absolutely no doubt the jury was well
aware of Maldonado’s character and
motivations for testifying. Williamson,
202 F.3d at 977 ("The right to cross-
examination is not unlimited; the
Confrontation Clause guarantees only
effective cross-examination, not cross-
examination of any type sought by the
defendant."). The district court did not
abuse its discretion by limiting further
cross-examination on this peripheral
matter.

F. U.S.S.G. sec. 6B1.2 Rejection of a Plea
Agreement

  A district court’s decision to accept or
reject a plea agreement is reviewed for
an abuse of discretion. United States v.
Sandles, 80 F.3d 1145, 1147 (7th Cir.
1996); United States v. Greener, 979 F.2d
517, 518 (7th Cir. 1992). The district
court, exercising its discretion, may
accept or reject a guilty plea since
there is "no absolute right to have a
guilty plea accepted." Santobello v. New
York, 404 U.S. 257, 262 (1971); United
States v. Denegal, 678 F.2d 47, 50 (7th
Cir. 1982); Greener, 979 F.2d at 519-20.
Plea agreements are contracts between the
parties, and like stipulations, do not
bind the court. See Sandles, 80 F.3d at
1147-48.

  Under the rubric of the Sentencing
Guidelines the court has the
responsibility to use its sound
discretion to examine plea agreements. As
section 6B1.2(a) of the Sentencing
Guidelines provides:

  In the case of a plea agreement that
includes the dismissal of any charges or
an agreement not to pursue potential
charges [Rule 11(e)(1)(A)], the court may
accept the agreement if the court
determines, for reasons stated on the
record, that the remaining charges
adequately reflect the seriousness of the
actual offense behavior and that
accepting the agreement will not
undermine the statutory purposes of
sentencing or the sentencing guidelines.

U.S.S.G. sec. 6B1.2(a) (Policy Statement)
(emphasis added). Additionally, the
official commentary to section 6B1.2 pro
vides:

  This requirement does not authorize
judges to intrude upon the charging
discretion of the prosecutor. If the
government’s motion to dismiss charges or
statement that potential charges will not
be pursued is not contingent on the
disposition of the remaining charges, the
judge should defer to the government’s
position except under extraordinary
circumstances. Rule 48(a), Fed. R. Crim. P.
However, when the dismissal of charges or
agreement not to pursue potential charges
is contingent on acceptance of a plea
agreement, the court’s authority to
adjudicate guilt and impose sentence is
implicated, and the court is to determine
whether or not dismissal of charges will
undermine the sentencing guidelines.

U.S.S.G. sec. 6B1.2 (commentary)
(emphasis added). "The sentencing judge
must ensure that the main objectives of
the sentencing guidelines, consistency
and certainty in sentencing, are not
undermined by plea bargaining between the
parties." Greener, 979 F.2d at 520. It is
with these principles in mind we turn to
the challenge at hand.


  1.   Victor Matias, Jr. (01-1929)

  The plea agreement provided that Victor
Matias, Jr. would plead guilty to
conspiracy, and under oath he provided
testimony regarding the activities of the
conspiracy. In exchange, the government
would dismiss the remaining two counts of
the indictment for distribution. After
the parties agreed to the plea, Matias,
Jr. testified at the trial of Hector
Carrasco, Johnny Alicea, and Victor
Alicea. Matias, Jr.’s testimony at trial
was directly contradictory to his prior
sworn testimony. Matias, Jr. denied that
he and the other three defendants on
trial engaged in any drug deals,
purchases, or conspiracy.

  Based on the plea agreement the maximum
sentence for the remaining conspiracy
charge was 240 months (20 years) in
prison. The PSR had previously calculated
his potential sentence (based on all
three counts and applicable enhancements)
at 360 months (30 years) to life in
prison. At sentencing, the district court
reviewed the plea agreement and rejected
it, finding it did not adequately reflect
the severity of the defendant’s conduct
and would "undermine the sentencing
guidelines." Matias, Jr. subsequently
withdrew his guilty plea. A superceding
indictment alleging five counts was
returned and the district court dismissed
the prior indictment. A trial commenced
and the jury found Matias, Jr. guilty on
all five counts. The district court then
sentenced Matias, Jr. to 360 months (30
years) and 5 years supervised release,
and a concurrent term of 240 months (20
years) and 3 years supervised release.

  Matias, Jr. does not argue that the
district court abused its discretion in
rejecting his plea agreement. Rather,
Matias, Jr. asserts that the district
court usurped the authority of the
prosecutor in violation the principle of
separation of powers. In the alternative,
Matias, Jr. argues that U.S.S.G. sec.
6B1.2 is unconstitutional. These claims
are, by far, the most imaginative
arguments raised by any of the defendants
in this appeal, albeit equally
unsuccessful.

  At the outset, Matias, Jr. seeks to
treat the dismissal of the other counts
as separate from the plea agreement. In
the context of a plea agreement, the
dismissal of specific charges is
contingent on the defendant’s guilty plea
to other charges; in sum the dismissal
and guilty plea are two parts of one
agreement. Cf. United States v. Peterson,
268 F.3d 533, 534 (7th Cir. 2001). A plea
agreement is a unified document, and even
if the district court wanted to it could
not accept part and reject part. See id.
("The whole plea agreement stands, or the
whole thing falls.").

  Matias, Jr. cites a number of cases in
which a district court refused to grant a
prosecutor’s motion to dismiss the
indictment under Fed. R. Crim. P. 48 and
were reversed on appeal. The decision to
indict, allege specific charges, or
dismiss charges is inherently an exercise
of executive power, and the prosecutor
has broad discretion in these matters.
See, e.g., Newman v. United States, 382
F.2d 479, 480-82 (D.C. Cir. 1967)
(Burger, J.). The executive can choose
not to prosecute one case, yet prosecute
vigorously another involving the same
issues. See id. (citing cases and stating
that "[t]wo persons may have committed
what is precisely the same legal offense
but the prosecutor is not compelled by
law, duty or tradition to treat them the
same as to charges."). The judiciary
cannot compel prosecutions, nor can a
judge refuse to grant the prosecution’s
voluntary motion to dismiss charges
absent a specific finding of bad faith.
See United States v. Palomares, 119 F.3d
556, 558 (7th Cir. 1997); United States
v. Smith, 55 F.3d 157, 158-59 (4th Cir.
1995). Rule 48 of the Federal Rules of
Criminal Procedure, requiring "leave of
court" to dismiss an indictment, checks
the discretionary power of the prosecutor
to seek a nolle prosequi and later re-
indict on the same charges. Rule 48
allows a court to ensure the fair
administration of justice and prevent
harassment of a defendant. Smith, 55 F.3d
at 158-59. The leave of court requirement
does not allow the judiciary to exercise
executive powers; rather the condition
protects the justice system judges
oversee from misuse after proceedings
have been initiated by the executive. See
United States v. Goodson, 204 F.3d 508,
512-15 (4th Cir. 2000) (noting a court
may dismiss charges under Rule 48(b) to
"preserve the integrity of the judicial
process.").

  Since the judicial check on the
prosecutorial power is a very limited
one, a prosecutor’s motion to dismiss
must be granted unless "clearly contrary
to manifest public interest." Smith, 55
F.3d at 158-59; United States v. Hamm,
659 F.2d 624, 628-30 (5th Cir., Unit A,
Oct. 1981) (en banc); see also Rinaldi v.
United States, 434 U.S. 22, 30 (1977).
Judicial discretion becomes extremely
limited in circumstances where the
prosecutor seeks to dismiss the
indictment with prejudice and the
defendant joins the motion.

  The facts of this case are in stark
contrast to the Rule 48 cases cited
above. The district court, exercising its
authority under U.S.S.G. 6B1.2, rejected
a plea agreement, not a motion to dismiss
pursuant to Fed. R. Crim. P. 48. The United
States Attorney for the Western District
of Wisconsin did not once object to the
district court’s rejection of the plea
agreement, and does not assert that
prosecutorial authority has been, in any
way, usurped. As this panel suggested at
oral argument, the Assistant U.S.
Attorney, if he wanted to, could have
effectuated the same result the plea
agreement sought to by moving to dismiss
the other counts with prejudice and
having Matias, Jr. plead guilty to the
remaining count. If Matias, Jr. joined a
motion to dismiss with prejudice, the
court would have been required to grant
the motion, absent a specific finding
that dismissal would be manifestly
against the public interest. Cf. Hamm,
659 F.2d 629-30; Smith, 33 F.3d at 159.
However, the U.S. Attorney was not upset
by the rejection of the plea agreement
because Matias, Jr., after accepting the
benefits of the plea agreement, attempted
to sabotage the U.S. Attorney’s case by
taking the witness stand and committing
perjury in the trial of three other
coconspirators.

  As we noted at the outset of this
analysis, the court has a role to play in
plea bargains and need not accept a plea
agreement because there is no absolute
right to plead guilty. Greener, 979 F.2d
at 519-20. The district court in Greener
rejected two plea agreements before
finally accepting a third, and we found
the rejections to be well within the
court’s discretion. Id. The agreement
here did not bind the court, and it was
free to reject the agreement if it found
the agreement would undermine the
sentencing guidelines or did not
adequately take into account the
defendant’s relevant conduct. See id.;
Sandles, 80 F.3d at 1147-49. Taking into
consideration Matias, Jr.’s role in the
conspiracy and the sentence he would
receive, the district court properly
rejected the plea on the grounds it would
undermine the sentencing guidelines.
Greener, 979 F.2d at 519-20. The district
court’s role in reviewing plea agreements
under U.S.S.G. 6B1.2 is neither improper,
nor an exercise of executive authority in
violation of the constitution. We
conclude the district court did not abuse
its discretion in rejecting the plea
agreement in this case.

CONCLUSION
  Because there are no errors in the
district court’s rulings at trial, and
because the district court properly
sentenced each defendant, we Affirm all
the defendants’ convictions and
sentences.

FOOTNOTES

/* Case No. 3747, United States of America v. Hector
Carrasco, was submitted on the briefs without
oral argument. See Fed. R. App. P. 34; Cir. R.
34.

/1 In total, eight defendants were indicted and
convicted, but only five have appealed aspects of
their convictions or sentences. Johnny Alicea,
Victor Matias, Sr., and Jefferson Selje did not
appeal.

/2 An example of a better indictment is provided by
another defendant in this appeal. Count one of
the superceding indictment against Victor Matias,
Jr. specifically charged Matias, Jr. with con-
spiring to distribute in excess of 500 grams of
cocaine. The jury found that Matias, Jr. did
conspire to distribute more than 500 grams of
cocaine. This more comprehensive indictment
probably accounts for Matias, Jr. not appealing
his sentence based on Apprendi.
