In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3710

United States of America,

Plaintiff-Appellee,

v.

Macario Viezca,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 CR 671--Blanche M. Manning, Judge.

Argued June 8, 2001--Decided September 7, 2001

 

 Before Bauer, Easterbrook, and Kanne,

Circuit Judges.

 Kanne, Circuit Judge. Macario Viezca was

convicted by a jury of conspiring to

possess, with the intent to distribute,

cocaine. He now appeals, alleging that:

(1) the government presented insufficient

evidence to support his conviction; (2)

the district court improperly failed to

provide the jury with a Sears

instruction; and (3) the district court

erred by denying his motion for a new

trial based upon juror bias. Because we

find no reversible error among these

claims, we affirm Viezca’s conviction.

I. History

 On November 5, 1996, Terry Albrecht, a

convicted felon who was cooperating with

the Federal Bureau of Investigation,

contacted Viezca to set up a meeting.

Albrecht and Viezca had met in 1995

through a common acquaintance, Yolanda

Estrada. Viezca agreed to meet with

Albrecht at a local restaurant. At the

meeting, Albrecht told Viezca that his

nephews were interested in selling drugs.

Viezca asked Albrecht what he was looking

for, and Albrecht indicated he was

interested in purchasing an ounce of

cocaine. Viezca responded to this by

telling Albrecht that he would set him up

with his brother, Ronald Mendoza. Viezca
also told Albrecht that he did not "do

shit right now," suggesting that he was

not currently dealing drugs, but he

reiterated that he would "hook" Albrecht

up with his brother. Viezca then used

Albrecht’s cellular telephone to call his

brother. While waiting for his brother to

return his call, Viezca confirmed that

Albrecht was interested in purchasing an

ounce of cocaine. Albrecht agreed and

indicated that he was also interested in

becoming a regular customer of Viezca’s.

 Viezca eventually spoke with his brother

and explained by way of a series of

previously established code words in

Spanish that Albrecht was interested in

buying an ounce of cocaine. He also told

his brother to come to the restaurant to

talk with Albrecht, that Albrecht wanted

to make a purchase that day, and that he

was interested in becoming a regular

customer. After this conversation, Viezca

and Albrecht discussed how they would

finalize the purchase and they agreed

that Albrecht would call Viezca later

that day. Viezca then left the

restaurant, and Albrecht waited for

Mendoza to arrive. 

 Mendoza arrived at the restaurant later

that evening. He approached Albrecht and

stated that "Gallo," Viezca’s nickname,

told him to come to the restaurant.

Albrecht indicated that he was the man

Mendoza was looking for and the two men

then began to discuss the specifics of

the drug purchase. Mendoza inquired as to

the quantity Albrecht wanted to purchase,

and Albrecht indicated that he wanted to

purchase an ounce of cocaine. Mendoza

explained that he only had 1/16 of an

ounce of cocaine on his person because he

believed that the Spanish word his

brother had communicated to him,

"camisa," was code for this amount of co

caine. During this discussion, Viezca

called Albrecht on his cellular telephone

and Albrecht let him speak with Mendoza.

After Mendoza finished his conversation

with Viezca, Albrecht asked him whether

Viezca was going to return to the

restaurant. Mendoza responded that he was

not, "just as long as we’re straight."

Albrecht then inquired as to how much an

ounce of cocaine would cost. Mendoza

explained that although he usually

charged "nine" (nine hundred dollars),

"since it’s for my brother I’d go eightfifty." Mendoza told Albrecht that he
would leave the restaurant for a period

of time but that he would return. 

 Mendoza later returned to the restaurant

in a pick-up truck. Albrecht got into the

truck and they drove around the

surrounding neighborhood. Mendoza

produced a plastic bag containing 28.1

grams of cocaine, which he gave to

Albrecht in exchange for the agreed upon

amount of money. Mendoza then dropped

Albrecht off at the restaurant.

 In February of 1997, Albrecht contacted

Viezca by attending a party being held

for Viezca’s son at a neighborhood

establishment. Although the two men

talked at the party, no discussion

pertaining to drugs occurred at that

time. Albrecht did, however, indicate

that he would call Viezca sometime in the

near future. Several days later, Albrecht

tried to contact Viezca by using the

pager number Viezca had given to him.

After several unsuccessful attempts,

Albrecht contacted Mendoza, telling him

that he had been trying to get in touch

with Viezca "to get another camisa."

Mendoza informed Albrecht that Viezca had

changed his pager number. Mendoza gave

Albrecht new contact information for

Viezca and Albrecht gave Mendoza his

telephone number. Mendoza indicated that

he would give Albrecht’s number to his

brother.

 The next day, Albrecht paged Viezca and

Viezca returned his page. Albrecht

expressed his interest in obtaining

another "camisa." Viezca told Albrecht to

contact him the following day. Albrecht

did not contact Viezca the next day or

immediately thereafter because federal

agents took possession of the cellular

telephone Albrecht had been using for

approximately three weeks. Albrecht did

contact Viezca on March 6, however, and

Viezca told Albrecht that he had been

trying to contact Albrecht, but that no

one was answering his telephone. Viezca

asked Albrecht if he was interested in

stopping by to see Viezca that night,

informing Albrecht that he would be at a

local club. Albrecht indicated that he

would try to meet him, but that if he

could not make it that night, that he

would meet with him the next evening.

Viezca made sure that Albrecht wanted to

"talk, right?" Albrecht agreed, and

Viezca told him to page him. Albrecht did
not meet or call Viezca that evening.

 The next evening Albrecht paged Viezca.

Viezca returned the page, wondering where

Albrecht had been the previous night and

indicating that he had been expecting

Albrecht to meet him. Albrecht provided

several excuses and then asked Viezca if

he was free to meet that night.

Viezcaexplained that he was not really

free, but he confirmed that Albrecht was

interested in setting up another cocaine

purchase. Viezca told Albrecht to call

Mendoza and gave him Mendoza’s number.

Viezca also agreed to call Mendoza to

make the purchase easier. Albrecht tried

unsuccessfully to contact Mendoza and

thereafter called Viezca asking him to

let Mendoza know that he was trying to

reach him. Viezca agreed to call his

brother right away and give him

Albrecht’s telephone number. After he had

not heard from Mendoza for a period of

time that evening, Albrecht again paged

and subsequently spoke with Viezca.

Viezca told Albrecht that he would speak

with his brother and that Albrecht should

wait for Mendoza’s phone call. Shortly

after Albrecht hung up with Viezca,

Mendoza called Albrecht. The two men

arranged the details of another drug

purchase to take place at a local

restaurant.

 Albrecht went to the restaurant he and

Mendoza had agreed upon. Mendoza was not

there; however, Sammy Guerrero showed up

in his place. Unfamiliar with Guerrero,

Albrecht asked him if he knew Gallo.

Guerrero responded affirmatively and

identified himself as Mendoza’s nephew.

The two men proceeded to get into the car

Guerrero had driven to the restaurant.

Having seen police officers in the

restaurant, the two men drove away from

the restaurant, and Guerrero gave

Albrecht 27.8 grams of cocaine in

exchange for $850.00.

 In April of 1997, Albrecht again

contacted Viezca. He explained that he

had tried to communicate with Mendoza

about another purchase, but that he had

not been able to get in touch with him.

Viezca indicated that there were no drugs

available to be purchased, but when

Albrecht told him that Mendoza directed

him to call him that day, Viezca agreed

to talk with his brother. Viezca later

contacted Albrecht and confirmed that a
purchase was not possible at that time.

However, he told Albrecht to call him

later that week to see if the situation

had changed.

 Viezca, Mendoza, and Guerrero were all

subsequently arrested and indicted in a

three-count indictment. Count one of that

indictment charged Viezca, along with

Mendoza and Guerrero, with conspiring to

possess with the intent to distribute

cocaine in violation of 21 U.S.C. sec.

846. The indictment alleged that, on two

separate occasions, quantities of cocaine

were delivered to an individual as a

result of the conspiracy. Mendoza and

Guerrero both pleaded guilty; however,

Viezca pleaded not guilty and was tried

and convicted by a jury. Because of prior

felony convictions, the district court

determined that Viezca was a career

offender, and subsequently sentenced him

to 262 months imprisonment. He now

appeals.

II. Analysis

A. Sufficiency of the Evidence

 Viezca’s first claim on appeal alleges

that the evidence produced at trial was

insufficient to support his conviction

for conspiring to possess with the intent

to distribute cocaine in violation of 21

U.S.C. sec. 846. We have explained that

"a defendant who attacks the legal

sufficiency of the evidence supporting a

conviction faces a nearly insurmountable

burden." United States v. Phillips, 239

F.3d 829, 842 (7th Cir. 2001) (quotation

omitted). In reviewing Viezca’s claim, we

view the evidence in the light most

favorable to the government and draw all

reasonable inferences in its favor. See

United States v. Gardner, 238 F.3d 878,

879 (7th Cir. 2001). Additionally, we

will overturn the jury’s verdict "only if

the record contains no evidence from

which the jury could have found guilt

beyond a reasonable doubt." United States

v. Jefferson, 252 F.3d 937, 942 (7th Cir.

2001) (quotation omitted).

 To prove that Viezca was a part of a

conspiracy, the government had to

demonstrate that a conspiracy existed and

that Viezca knowingly agreed to join it.

See United States v. Albarran, 233 F.3d

972, 976 (7th Cir. 2000) (explaining that

the government must "show that there is
substantial evidence that the particular

defendant in question knew of the illegal

objective of the conspiracy and agreed to

participate in its achievement.")

(quotation omitted). The government may

prove these elements entirely by way of

circumstantial evidence. See United

States v. Pagan, 196 F.3d 884, 889 (7th

Cir. 2000) ("All that is necessary is

enough circumstantial evidence to

support, beyond reasonable doubt, an

inference that the defendants agreed

among themselves to distribute drugs.")

(quotation omitted). Furthermore, the

requisite agreement between coconspirators need not be explicit and no

overt act is required. See United States

v. Sanchez, 251 F.3d 598, 601 (7th Cir.

2001) ("[I]n the murky world of illicit

drugs, conspiracies are, by necessity,

loosely-knit associations."). 

 Viezca contends that the evidence

presented by the government at his trial

established nothing more than the fact

that he was an intermediary between a

willing buyer, Terry Albrecht, and a

willing seller, Ronald Mendoza.

Alternatively, Viezca argues that the

only possible conspiracy established by

the government’s evidence was one between

himself and Albrecht, but that because

Albrecht was acting as a government

agent, no such conspiracy is legally

recognizable. We do not agree with either

of these arguments. 

 From the initial meeting between Viezca

and Albrecht in November of 1996, to

their final conversation in April of

1997, Viezca’s role exceeded that of

simply bringing together a buyer and

seller of cocaine. Despite Viezca’s

comment at the initial meeting that he

"did not do shit right now," the evidence

collected from the extensive government

surveillance conducted in this case

demonstrated to the jury that Viezca made

repeated efforts to establish, maintain,

and facilitate what he and his brother

both thought would be a long term illegal

business relationship with Albrecht.

Thus, we find that there was sufficient

evidence for the jury to conclude that

Viezca and Mendoza forged an agreement to

distribute cocaine to Albrecht, and that

therefore, Viezca was guilty of

conspiring to possess with the intent to

distribute cocaine.
B. Sears Instruction 

 In his second claim, Viezca argues that

the district court should have provided

the jury with a Sears instruction to

inform the jury that Terry Albrecht could

not be a conspirator because he acted in

cooperation with the government. He

further contends that based on the

evidence presented at trial, the district

court’s failure to sua sponte instruct

the jury that Albrecht could not be a

bona fide co-conspirator constitutes

reversible error. Because Viezca neither

requested such an instruction nor

objected to the lack of such an

instruction during his trial, our review

of the district court’s decision not to

provide the jury with this instruction is

for plain error. See Fed. R. Crim. P.

52(b). Therefore, "we must decide (1)

whether there was an error at all, (2)

whether it was plain, (3) whether it

affected the defendant’s substantial

rights, and (4) whether (if the first

three factors are present) it seriously

affected the fairness, integrity, or

public reputation of the judicial

proceedings." United States v. Martinez,

No. 00-1967, 2001 WL 783739, at *4 (7th

Cir. July 12, 2001) (quotation omitted).

 In Sears v. United States, 343 F.2d 139

(5th Cir. 1965), the Fifth Circuit

reversed a portion of Sears’ conviction

because it found that the district court

had committed error by refusing to

instruct the jury that it could not find

him guilty of conspiracy if the only

agreement it found him to have entered

into was one by which he unknowingly

agreed to assist with the illegal

activities of a government informant who

secretly intended to frustrate the

conspiracy. Id. The court explained that

such an instruction should have been

given by the district court because "[i]n

view of the posture of the evidence and

the charge actually given by the court,

the jury may well have actually believed

that it could convict Sears simply by

believing that he agreed with [the

government informant] and accepted bribes

from him." Id. at 142. 

 This court has subsequently cited Sears

for the proposition that "an agreement

with an agent of the police is not a

criminal conspiracy." United States v.

Duff, 76 F.3d 122, 127 (7th Cir. 1996).
In Duff, this court concluded that the

district court erred in denying the

request of one of the defendants that an

instruction be given to the jury explain

ing that a government informant could not

be considered to be a bona fide

conspirator. 76 F.2d at 127. In reaching

this conclusion, we found that the

wording of the indictment, which "alleged

that the 17 defendants ’did

knowinglyconspire together and with

diverse other persons known and unknown

to the Grand Jury,’" left open the

possibility that the informant could have

been one of these "diverse other persons

known and unknown to the Grand Jury." Id.

Additionally, we observed that the

informant’s "drug transactions with the

defendants played a prominent role in the

trial." Id. Thus, we found that the

defendant was "entitled to have the jury

told in no uncertain terms, that, if the

sole agreement into which [the defendant]

entered was with [the informant] then

[the defendant] had to be acquitted of

conspiracy." Id. at 127. We found this

error to be harmless, however, because

trial testimony indicated that the

defendant was an active supervisor of the

relevant drug organization, whereas the

informant was a newcomer to the

organization who had to be shown the

basics of the drug trade. See id. at 127-

28. Thus, we concluded that "no

reasonable jury would have thought that

[the defendant] agreed only with [the

informant]." Id. at 128. Accordingly,

since "the omission of the instruction .

. . did not matter," we simply noted that

"it should be given the next time a

similar situation crops up." Id. Viezca

now contends that the present case is

that next time this court referred to in

Duff. 

 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 instruc

tion 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. 

C. Potential Juror Bias

 Viezca’s final claim on appeal

challenges the district court’s denial of

his motion for a new trial based on juror

bias. He argues that the district court

should have granted this motion because

one of the jurors lied during voir dire

about his father’s legal problems. We

review the district court’s denial of

Viezca’s motion for an abuse of

discretion. See United States v. Wilson,

237 F.3d 827, 831-32 (7th Cir. 2001). In

reviewing the district court’s decision,

we must accept the court’s findings

unless they are clearly erroneous. See

United States v. Pigee, 197 F.3d 879, 888

(7th Cir. 1999). 

 Jury selection in this case began with

the district court clerk calling a group

of twenty-one individuals including Jess

Gill. The court posed general questions

to the entire group, followed by a series

of additional questions put to each

individual. Among the court’s questions

to Gill was the following inquiry:

The Court: Okay. Have you, a member of
your family, or any close friends ever

been arrested for any criminal offenses

other than minor traffic violations?

Juror Gill: No.

Tr. at 67-69. Both parties accepted Gill

as a juror, and he was later chosen to be

the foreperson of the jury. After the

jury convicted Viezca, the government

learned that Juror Gill’s father had been

charged in 1996 with making false

statements in connection with loan and

credit reports in violation of 18 U.S.C.

sec. 1014, and failing to file tax

returns in violation of 26 U.S.C. sec.

7203. Juror Gill’s father pleaded guilty

to these charges and was sentenced to

twelve months’ incarceration. Because of

health problems, however, his report date

to begin serving his sentence had been

delayed, and he had not yet reported to

federal authorities as of September 22,

2000--the date of the hearing at which

the district court considered Viezca’s

motion for a new trial. It was also

subsequently discovered that Juror Gill’s

father had been arrested on two previous

occasions: once in 1967 and once in 1980.

 The district court considered Viezca’s

motion for a new trial at the September

22, 2000 hearing. In considering this

motion, the court questioned Juror Gill

regarding his answer to the court’s

inquiry as to whether he or anyone in his

family had ever been convicted of a

criminal offense other than a minor

traffic violation. Gill explained that he

knew his father had visited the Dirksen

Federal Building, and that he had legal

problems, more specifically a tax

problem, but he stated that he did not

think that it was a criminal problem and

therefore "didn’t attach that to a

conviction or an arrest." He further

indicated that he was not aware of his

father’s other arrests, and that his

father had only told him after he served

on the jury at Viezca’s trial that he had

actually been convicted of a crime. After

concluding its inquiry, the court gave

the government and Viezca’s attorney the

opportunity to question Juror Gill. The

government also produced a copy of the

Pre-Sentencing Report compiled in

connection with the offenses Juror Gill’s

father pleaded guilty to in 1996. This

report indicated that the father

specifically asked the probation officer
not to contact his family members and

that he had not told his sons at that

point about his criminal problems. After

listening to Juror Gill’s testimony and

the respective arguments proffered by the

government and Viezca’s attorney, the

court made the following findings: 

[W]e’ve had Mr. Gill testify here today

before this Court. You each had an

opportunity to also inquire of him. I’ve

looked at Mr. Gill as I inquired of him

and as you inquired of him. I watched

him. I looked in his face. I looked at

his demeanor. I am totally convinced by

the manner in which he testified that he

is telling the truth. I believe that he

did not know that his father had, in

fact, been criminally prosecuted.

Notwithstanding that that question wasn’t

even asked, I frankly believe that, and

it is definitely supported by the

probation report which reveals it. That

report was prepared long before this

occurred, and it reveals that [Juror

Gill’s father] specifically requested

that his sons not be made of aware [sic]

the fact that he had, in fact, been

convicted of this criminal offense. So I

think the evidence is overwhelming that

he is telling the truth, that he did not

lie when he was inquired of during voir

dire. 

Tr. at 28-29. The court then considered

Viezca’s motion in the context of the

analysis articulated by the Supreme Court

in McDonough Power Equip., Inc. v.

Greenwood, 464 U.S. 548, 104 S. Ct. 845,

78 L. Ed. 2d 663 (1984) ("We hold that to

obtain a new trial in such a situation, a

party must first demonstrate that a juror

failed to answer honestly a material

question on voir dire, and then further

show that a correct response would have

provided a valid basis for a challenge

for cause."). The court denied the

motion, noting that it had already found

that Juror Gill answered the questions at

voir dire truthfully. The court further

commented that, because Viezca had

accepted a person as a juror who had been

convicted in a court-martial proceeding,

it did not think that knowing about Juror

Gill’s father would have made a

difference in the jury selection process.

 In reaching her decision to deny

Viezca’s motion, Judge Manning reviewed

all of the available information describ
ing the circumstances surrounding Juror

Gill’s father, as well as the exact

questions posed to Juror Gill at

theoriginal voir dire and his answers.

Furthermore, at the September 22 hearing,

Judge Manning specifically questioned

Juror Gill about the extent of his

knowledge regarding his father’s legal

troubles and she carefully observed both

Juror Gill’s statements in response to

these questions as well as his demeanor

in answering. Accordingly, although the

situation involving Juror Gill was indeed

peculiar, our review of the court’s

findings leaves us confident that Juror

Gill answered each question put to him at

the initial jury selection process in a

forthright and honest manner and that,

therefore, a new trial is not warranted.

See McDonough Power Equip., Inc., 464

U.S. at 556. Thus, because we find that

Judge Manning’s findings of fact were not

clearly erroneous, and that she did not

abuse her discretion in denying Viezca’s

motion for a new trial, we will set aside

this claim.

III. Conclusion

 For the aforementioned reasons, we AFFIRM

Viezca’s conviction.