In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1850
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
REFUGIO RUIZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 493 Rebecca R. Pallmeyer, Judge.
ARGUED OCTOBER 27, 2000--DECIDED May 2, 2001
Before EASTERBROOK, KANNE, and ROVNER,
Circuit Judges.
ROVNER, Circuit Judge. Refugio Ruiz was
arrested after police officer Glen
Lewellen observed him carrying a bag
filled with 10 kilograms of cocaine to a
waiting car. A jury convicted him of
possessing cocaine with the intent
todistribute. Ruiz contends that the
district court erred when it permitted
Lewellen’s partner to recount Lewellen’s
contemporaneous descriptions, via a
walkie-talkie, of Ruiz and the actions he
saw Ruiz take on the night of his arrest.
Ruiz also contends that the court
improperly enhanced his sentencing level
based on his failure to disclose some of
his prior arrests to the probation
officer. We affirm Ruiz’s conviction and
sentence.
I.
On July 8, 1999, officers Glen Lewellen
and Noel Sanchez, assigned to the
narcotics section of the Chicago Police
Department’s organized crime division,
received a tip that narcotics trafficking
was occurring at an apartment house in
the southwestern suburb of Aurora. That
afternoon, Lewellen and Sanchez set up
surveillance outside the house. Lewellen
parked his unmarked car 450 to 500 feet
away from the back of the building and
trained his high-powered binoculars on
the rear entrance; Sanchez covered the
front and side. The two kept in contact
by way of radio and walkie-talkies,
reporting to one another any activity
that they observed.
At approximately 4:30 p.m., Lewellen saw
a van pull into the driveway adjacent to
the building and drop off a Hispanic
male, who subsequently entered the
building through the rear doorway.
Lewellen later identified this individual
as Ruiz. Ruiz’s shirt and pants were
white. Over the next three hours,
Lewellen saw Ruiz emerge from the
building three times. On each occasion,
Ruiz walked out onto the back porch of
the building (and in one instance onto a
nearby sidewalk), looked about for a
moment or two, and then re-entered the
building.
Shortly before 7:30, Lewellen saw a
silver car with no license plates pull
into the parking lot immediately behind
the building and park with its trunk
facing the back door of the building.
Ruiz appeared on the back porch
momentarily, motioned toward the car, and
then re-entered the building. Sensing
that a narcotics transaction was about to
take place, Lewellen moved his vehicle
closer to the building. After a few
minutes, he saw Ruiz poke his head out of
the rear doorway of the building and look
around. Still looking to and fro, Ruiz
then walked out onto the back porch and
down the porch stairs toward the silver
car carrying a large yellow bag that
appeared to Lewellen to be heavy. Because
their backup had not yet arrived,
Lewellen and Sanchez had already agreed
to break up the apparent transaction
before it could be completed. Lewellen
therefore drove his car into the lot and
pulled up next to the silver automobile,
directly in front of Ruiz. Ruiz dropped
the bag and fled back into the building,
and the silver car sped away from the
lot.
The bag that Ruiz had abandoned turned
out to contain some 10 kilograms of
cocaine, with a street value of $1.25
million. Although the silver car was
never located, Lewellen and Sanchez
quickly found and arrested Ruiz in an
apartment just inside of the building’s
rear entrance. A consensual search of
that apartment produced some $1,800 in
cash, hidden within a vacuum cleaner. No
drugs, drug paraphernalia, or other signs
of drug trafficking were found in Ruiz’s
apartment, however. After the search of
Ruiz’s apartment was completed, police
also knocked on the doors of each of the
other apartments in the building and
obtained the occupants’ consent to search
the premises. They discovered no one else
who matched the description of the person
Lewellen had seen carrying the cocaine-
laden bag to the silver automobile.
A grand jury charged Ruiz with
possessing cocaine with the intent to
distribute, in violation of 21 U.S.C.
sec. 841(a)(1). At trial, Lewellen
described the actions he had seen Ruiz
take on the afternoon and evening in
question. Over Ruiz’s objection, Judge
Pallmeyer also permitted Sanchez to
recount what Lewellen had relayed to him
via radio and walkie-talkie regarding the
appearance and conduct of Ruiz. The judge
found Sanchez’s testimony admissible
under the present sense exception to the
hearsay rule. See Fed. R. Evid. 803(1).
Ruiz himself took the stand and testified
that he was not the person that Lewellen
had seen carrying the yellow bag of
cocaine. The jury obviously believed
otherwise, however, given that it
convicted him of possession with intent
to distribute.
In the course of his pre-sentence
investigation, the probation officer
asked Ruiz about previous arrests and
convictions. Ruiz indicated, inter alia,
that he had not been arrested in Utah.
Subsequently, however, the probation
officer determined that Ruiz had been
arrested on multiple occasions in that
state; at least one of these arrests had
culminated in a conviction. Based on
Ruiz’s failure to disclose those arrests,
Judge Pallmeyer enhanced Ruiz’s offense
level for obstruction of justice,
pursuant to section 3C1.1 of the
Sentencing Guidelines. R. 43-3,
Sentencing Tr. 8-9. She ordered Ruiz to
serve a prison term of 210 months (the
low end of the Guidelines range). R. 35.
II.
A.
After Lewellen described for the jury
the actions he had seen Ruiz take in the
hours before his arrest, the government
called Sanchez to the witness stand.
Sanchez, who had been stationed in front
of the apartment house, witnessed none of
the events that Lewellen had seen take
place in the rear of the building. But
Lewellen had contemporaneously relayed to
Sanchez via radio and walkie-talkie what
he saw happening, and over Ruiz’s hearsay
objection, the district court allowed
Sanchez to repeat some of Lewellen’s
statements. Sanchez repeated Lewellen’s
statements concerning, inter alia, Ruiz’s
appearance and clothing, Ruiz’s conduct
on one of the occasions when he walked
out onto the back porch of the building,
the arrival of the silver automobile, and
the actions that Ruiz took after the
silver car arrived. R. 43-1, Trial Tr.
94, 97-99. The government argued that
Sanchez’s testimony was admissible as a
present sense impression, pursuant to
Federal Rule of Evidence 803(1), and the
court allowed the testimony on that
basis. Ruiz contends that the testimony
did not meet the criteria for this
exception to the hearsay rule, and that
in any event, the testimony was in
reality offered as evidence of Lewellen’s
prior consistent statements for the
purpose of bolstering his testimony.
Although Ruiz argues otherwise, we
believe that Sanchez’s testimony as to
what Lewellen told him met the accepted
criteria for present sense impression
testimony./1 Rule 803(1) indicates that
an out-of-court statement is not
excludable as hearsay, whether or not the
declarant is available to testify, if the
statement "describ[es] or explain[s] an
event or condition made while the
declarant was perceiving the event or
condition, or immediately thereafter."
Courts have agreed on three principal
criteria for the admission of statements
pursuant to this rule: (1) the statement
must describe an event or condition
without calculated narration; (2) the
speaker must have personally perceived
the event or condition described; and (3)
the statement must have been made while
the speaker was perceiving the event or
condition, or immediately thereafter. See
United States v. Mitchell, 145 F.3d 572,
576 (3d Cir. 1998); United States v.
Portsmouth Paving Corp., 694 F.2d 312,
323 (4th Cir. 1982); United States v.
Campbell, 782 F. Supp. 1258, 1260 (N.D.
Ill. 1991); see also 4 Christopher B.
Mueller & Laird C. Kirkpatrick, Federal
Evidence sec. 434, at 384-88 (2d ed.
1994). A statement that meets these
requirements is generally regarded as
trustworthy, because the "’substantial
contemporaneity of event and statement
minimizes unreliability due to defective
recollection or conscious fabrication.’"
United States v. Parker, 936 F.2d 950,
954 (7th Cir. 1991), quoting United
States v. Blakey, 607 F.2d 779, 785 (7th
Cir. 1979), overruled sub silentio on
other grounds by Idaho v. Wright, 497
U.S. 805, 110 S. Ct. 3139 (1990).
Lewellen’s statements to Sanchez satisfy
each of these criteria: he saw Ruiz and
what Ruiz did, he repeated his
observations to Sanchez, and he did so at
the same time as, or shortly after, he
made these observations. Moreover,
although the rule does not require it,
Lewellen himself testified, and was of
course subject to cross-examination as to
the substance of his observations.
Ruiz suggests that Lewellen’s statements
to Sanchez do not qualify for admission
as present sense impressions because
Sanchez was not a disinterested party and
because there was no independent
corroboration of these statements, but we
disagree. Sanchez’s motivation as a
witness presents a straightforward
credibility question. If, as Ruiz
suggests, Sanchez had an interest in
bolstering his partner’s story, then that
interest was no more and no less
pronounced with respect to the
observations that Lewellen relayed to him
than it was vis a vis anything else
Sanchez said on the witness stand. The
jury was free to give Sanchez’s testimony
such weight as it felt was appropriate.
As for the second point, courts sometimes
focus on the corroboration or the lack
thereof in admitting or excluding present
sense impressions, see Louisell & Mueller
sec. 434 at 383 n.5 (collecting cases),
but the truth is that the rule does not
condition admissibility on the
availability of corroboration. Id.; see
also 2 John W. Strong, McCormick on
Evidence sec. 271 at 203 & n.28 (5th ed.
1999)./2 The lack of another witness
who could independently verify Lewellen’s
observations, like Sanchez’s credibility,
bore upon the weight owed to this
evidence but did not bar its admission.
A more persuasive contention is that
whether or not Lewellen’s statements to
Sanchez qualified as present sense
impressions, the government actually
elicited Sanchez’s testimony concerning
these statements in order to bolster
Lewellen’s credibility. At oral argument,
the government conceded that Lewellen’s
statements to Sanchez were releant
insofar as they confirmed what Lewellen
recounted in his testimony. To that
extent, the statements are perhaps most
naturally analyzed as prior consistent
statements rather than present sense
impressions. See Fed.R.Evid. 801(d)(1)(B);
but see also United States v. Andrews,
765 F.2d 1491, 1501-02 (11th Cir. 1985),
cert. denied, 474 U.S. 1064, 106 S. Ct.
815 (1986) (analyzing the admissibility
of a police officer’s tape-recorded
observations alternatively as present
sense impressions and prior consistent
statements).
We are satisfied, however, that
Lewellen’s statements also meet the
criteria for prior consistent statements.
A person’s prior consistent statement is
admissible for the purpose of
rehabilitating his credibility, provided
that (1) the declarant testifies at trial
and is subject to cross-examination, (2)
his prior statement is indeed consistent
with this trial testimony, (3) the
statement is offered to rebut an explicit
or implicit accusation of recent
fabrication, and (4) the statement was
made before the declarant had a motive to
fabricate. E.g., United States v.
Stoecker, 215 F.3d 788, 791 (7th Cir.
2000), cert. denied, 121 S. Ct. 885
(2001), quoting United States v. Fulford,
980 F.2d 1110, 1114 (7th Cir. 1992). Each
of these criteria is satisfied here.
Lewellen testified at trial and was
thoroughly cross-examined as to the
subject of his observations. His
statements to Sanchez were consistent
with his testimony. The government
elicited proof of those statements after
Ruiz’s counsel, in cross-examining
Lewellen, raised the implication that
Lewellen’s testimony as to what he saw
Ruiz do on the night of his arrest was
fictional--for example, by pointing out
that Lewellen had not noted in his post-
incident report certain of the
observations to which he testified. R.
43-1, Trial Tr. 71-74; see United States
v. Cherry, 938 F.2d 748, 756 & n.12 (7th
Cir. 1991). Finally, Lewellen reported
his observations to Sanchez while events
were still unfolding, before the officers
arrested Ruiz and long before Lewellen’s
credibility was put into question. See
Andrews, 765 F.2d at 1501-02.
B.
Following Ruiz’s conviction, the
probation officer questioned him on two
occasions on the subject of his criminal
history. On the first occasion, Ruiz
indicated that his criminal history
included just one prior arrest in
California for driving while intoxicated.
The probation officer subsequently
learned from the United States Probation
Office in the Central District of
California that Ruiz had a history of
multiple arrests in that jurisdiction.
When the probation officer later
confronted Ruiz regarding the additional
arrests, Ruiz acknowledged them but
explained to the probation officer that
he had not disclosed them himself because
"you didn’t ask." When first questioned,
Ruiz also stated that he had not been
arrested in Utah. Subsequently, however,
the officer learned that Ruiz had also
been arrested on multiple occasions in
that state and convicted in at least one
instance. Notwithstanding Ruiz’s lack of
candor as to his criminal history, the
probation officer did not initially
recommend that Ruiz’s offense level be
enhanced for obstruction of justice.
After the government filed an objection,
however, the officer revised his report
to incorporate the enhancement./3 After
hearing argu-ment, the district court
found that Ruiz had indeed obstructed
justice. The court noted that Ruiz had
not simply withheld information about his
prior arrests, but had gone so far as to
affirmatively deny that he had been
arrested in Utah when, in fact, he had
been arrested in that state on multiple
occasions. R. 43-3, Sentencing Tr. 8-9.
We review that finding of fact for clear
error. E.g., United States v. Craig, 178
F.3d 891, 900 (7th Cir. 1999).
We see nothing clearly erroneous in the
district court’s determination. The
Guidelines call for the obstruction
enhancement when 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[.]"
sec. 3C1.1 (emphasis supplied). Although
the Guidelines do not oblige the
defendant to volunteer information to the
probation officer, see section 3C1.1
Application Note 2, neither do they
permit him to lie about his criminal
record. Application Note 4(h)
specifically recognizes that a defendant
willfully obstructs justice within the
meaning of the guideline when he gives
"materially false information to a
probation officer in respect to a
presentence or other investigation for
the court." See United States v. Thomas,
11 F.3d 1392, 1401 (7th Cir. 1993).
Thomas recognizes that lies about one’s
arrest record in particular constitute
obstruction of justice deserving of the
enhancement. Id. Here, Judge Pallmeyer
found that Ruiz’s denial that he had been
arrested in the State of Utah to
constitute a willful misrepresentation of
his record, and that finding is amply
supported by the record. Ruiz in fact had
been arrested several times in that
state, and as the district judge pointed
out, several of the arrests were
relatively recent--a circumstance that
made the possibility of Ruiz having
forgotten the arrests implausible. R. 43-
3, Sentencing Tr. 9.
Ruiz points out that he had difficulty
speaking English and that the district
court never held an evidentiary hearing
to inquire further into the circumstances
concerning his failure to disclose the
prior arrests. Neither circumstance
rendered the obstruction enhancement
inappropriate, however. An interpreter
was provided to Ruiz for purposes of the
interviews with the probation officer.
See R. 41, Pre-Sentence Report, at 17.
And although the probation officer did
not testify, the Pre-Sentence Report set
out the relevant facts in sufficient
detail for the district judge to conclude
that Ruiz willfully attempted to impede
the officer’s investigation into his
criminal history. The facts themselves
were undisputed; Ruiz and his counsel
simply took issue with the conclusion
that the government asked the court to
draw--and that Judge Pallmeyer ultimately
did draw--from those facts.
III.
Finding no error in the district court’s
evidentiary ruling or in its decision to
enhance Ruiz’s offense level for the
obstruction of justice, we AFFIRM his
conviction and sentence.
FOOTNOTES
/1 The government alternatively suggests that
Lewellen’s statements to Sanchez were admissible
in part for the non-hearsay purpose of explaining
the actions that Sanchez took after the silver
automobile arrived. See, e.g., United States v.
Lovelace, 123 F.3d 650, 652 (7th Cir. 1997), cert.
denied, 522 U.S. 1132, 118 S. Ct. 1088 (1998).
Our review of the record discloses that Sanchez
recounted far more of Lewellen’s statements than
were truly necessary to explain his own actions,
however.
/2 As at least one commentator has pointed out, when
Congress wished to condition the admissibility of
certain types of evidence on the presence of
corroboration, it imposed that requirement ex-
plicitly. McCormick sec. 271 at 203 n.28.
/3 The government asserted that the obstruction
enhancement was warranted not only because Ruiz
had failed to disclose a number of prior arrests,
but also because his testimony at trial was
false. The probation officer, however, did not
address Ruiz’s trial testimony, nor did the
district court do so when it imposed the enhance-
ment. See R. 43-3, Sentencing Tr. 8-9.