Submitted November 14, 2014
[Copyrighted Material Omitted]
Appeals from United States District Court for the Southern District of Iowa - Des Moines.
For United States of America, Plaintiff - Appellee (14-1769): Amy L. Jennings, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Des Moines, IA.
For Ismael Corrales-Portillo, Defendant - Appellant (14-1769): Erin M. Carr, CARR & WRIGHT, Des Moines, IA.
Ismael Corrales-Portillo, Defendant - Appellant (14-1769), Pro se, Oakdale, LA.
For United States of America, Plaintiff - Appellee (14-1816): Amy L. Jennings, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Des Moines, IA.
Jose Corrales-Portillo, also known as Abraham Diaz-Rodriguez, Defendant - Appellant (14-1816), Pro se, Oakdale, LA.
For Jose Corrales-Portillo, also known as Abraham Diaz-Rodriguez, Defendant - Appellant (14-1816): Patricia Mullen Hulting, Des Moines, IA.
Before RILEY, Chief Judge, BEAM and GRUENDER, Circuit Judges.
RILEY, Chief Judge.
A grand jury indicted brothers Jose Corrales-Portillo (Jose) and Ismael Corrales-Portillo (Ismael) for conspiring to distribute methamphetamine and heroin in violation of 21 U.S.C. § § 841(a)(1), (b)(1)(A), and 846 (count one); possessing with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2 (count two); and possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2 (count three). Jose pled guilty to count one, and the district court sentenced him to 175 months imprisonment. Ismael proceeded to trial, and a jury convicted him of all three counts. The district court sentenced Ismael to concurrent sentences of
188 months imprisonment on each count. Jose appeals his sentence, and Ismael appeals his conviction and sentence. With appellate jurisdiction under 28 U.S.C. § 1291, we affirm in each appeal.
On July 3, 2013, a confidential informant--seeking to avoid drug charges of his own--agreed to cooperate with an ongoing narcotics investigation by Officer Anthony Ballantini and Sergeant Kirk Bagby of the Des Moines, Iowa, Police Department (department). The informant, who had not previously cooperated with the department, provided detailed information about his supplier, an older Hispanic man he knew as Compa (later identified as Jose). To assist with the investigation, the informant, in the presence of the police, made a recorded call and texted Jose to arrange to purchase three pounds of methamphetamine. The informant told officers Jose obtained the drugs from Arizona and would transport them from Grand Island, Nebraska, to Des Moines the following week. This information corroborated what the officers had learned about the informant's drug business earlier in their investigation.
On July 13, 2013, the informant advised the police that Jose was in Grand Island and would deliver the drugs to Des Moines later that day. Contacting the officers throughout the day, the informant forwarded Jose's texts and advised the officers of the time and place he was to meet Jose and where Jose had hidden the drugs on his vehicle. The informant told the officers he expected Jose to be driving a vehicle with Arizona or Nebraska license plates because the informant previously had seen Jose deliver drugs in Grand Island with a blue Ford truck with Nebraska plates.
Before the meeting, Officer Ballantini instructed the informant to depart from the gas station where he was to meet Jose by driving south if he learned the drugs were in Jose's vehicle and to depart by driving north to a local garage if he was unsure where the drugs were. Officer Ballantini devised this signal because he suspected Jose might transport the drugs in a " ghost vehicle" to avoid police detection.
As Jose neared Des Moines, officers began surveilling the informant's residence and the gas station where he was to meet Jose. When the informant left for the meeting with Jose, Officer Ballantini followed him. Sergeant Cynthia Donahue was already at the station. Having parked her unmarked car near the gas station, Sergeant Donahue positioned herself inside the station. Sergeant Ronald Kouski waited nearby in a marked vehicle with a drug dog to make a traffic stop if necessary.
The informant arrived at the gas station and parked his car. Minutes later, Jose, an older Hispanic man, arrived in a blue Ford Ranger truck with Nebraska plates and met with the informant. As they met, Sergeant Donahue observed Ismael pumping gas into a Lexus with Nebraska plates. Ismael was watching the meeting and making eye contact with Jose and the informant. Sergeant Donahue deduced Ismael was providing counter-surveillance for Jose. When Ismael finished pumping gas, he parked his car and headed toward the building. Sergeant Donahue then lost track of Ismael as she left the building and
returned to her car to keep an eye on ...