United States v. Vargas, No. 11-1661 (7th Cir. 2012)
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The DEA received information about cocaine trafficking at a muffler shop. The agency identified Vargas as a suspect and used Rojo, a confidential informant, to pose as a drug dealer from Mexico, giving detailed instructions. During his arrest, Vargas claimed that a shoe box containing $45,000 cash was intended for purchase of a truck. He was convicted of attempting to possess, with intent to distribute, more than 500 grams of cocaine (21 U.S.C. 841(a)(1) and 846. The Seventh Circuit affirmed. Vargas and Rojo’s conversations contained countless coded references to cocaine. Vargas took a “substantial step” in his attempt to possess cocaine by appearing at a parking lot with $45,000 in cash. Rojo’s testimony that he had been told to get close to Vargas because of “possible cocaine trafficking” should not have been admitted, but the error was harmless in light of the overwhelming evidence of guilt. Exclusion of a portion of the videotaped arrest during which he blurted, “I was here buying a truck,” was appropriate under the hearsay rule. The jury charge adequately required a finding, beyond a reasonable doubt, that Vargas intended to possess cocaine and knowingly took a substantial step; Vargas’s requested “mere presence” instruction was irrelevant.
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