United States of America v. Roberto Rebolledo-Delgadillo

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2121
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
R OBERTO REBOLLEDO‐D ELGADILLO,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13‐cr‐00673 — John J. Tharp, Jr., Judge.
____________________
A RGUED A PRIL 6, 2016 — D ECIDED A PRIL 28, 2016
____________________
Before FLAUM, R IPPLE , and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. Defendant Roberto Rebolledo‐Del‐
gadillo (“Rebolledo”) appeals his conviction of possession
with intent to distribute more than five kilograms of cocaine
under 21 U.S.C. § 841(a)(1). Rebolledo, who attempted to bro‐
ker a large cocaine deal, argues that there was insufficient ev‐
idence to support his conviction. He also contends that he is
entitled to a new trial because the government presented false
testimony and misled the jury during closing arguments, as

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2 No. 15‐2121
well as a new sentencing because the district court improperly
denied safety valve relief. We affirm his conviction and his
sentence.
I. Background1
In early August 2013, Rebolledo contacted a man he
thought was a potential cocaine buyer, but who turned out to
be a confidential informant employed by the Drug Enforce‐
ment Administration (“DEA”) (we refer to him as the “CI”).
When Rebolledo suggested a drug sale, the CI contacted the
DEA.
Rebolledo and the CI planned the transaction during three
meetings that took place at the CI’s horse ranch in south Chi‐
cago. Rebolledo offered to connect the CI with a drug supplier
and the CI agreed to purchase over $200,000 of cocaine. The
parties arranged for the transaction to take place at the CI’s
ranch on August 16, 2013.
On that day, the drug supplier, Juan Ramirez‐Gutierrez
(“Ramirez”), dropped Rebolledo off at the ranch. Ramirez
then left to pick up the drugs and Rebolledo and the CI waited
behind. The CI wore a recording device with a three‐hour re‐
cording capacity, but for unknown reasons, the device only
recorded the first hour of the meeting. The recording device
had likewise failed during other pre‐deal meetings between
the CI and Rebolledo.
1 These facts were taken from trial testimony by the confidential informant
and co‐defendant Mario Orozco‐Aceves. Rebolledo did not testify at trial
and offered a different version of the facts during his safety valve proffer
with the government, as we discuss later.

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No. 15‐2121 3
Ramirez returned to the ranch with co‐defendant Mario
Orozco‐Aceves (“Orozco”). Rebolledo approached the car
and Ramirez told Rebolledo that Orozco was the person who
would “deliver the work to [Rebolledo].” Ramirez and
Orozco then left to pick up the drugs. Shortly thereafter,
Orozco returned by himself. It is unclear from the record
whether Rebolledo let Orozco onto the property and told him
where to park, or whether Orozco entered the property with‐
out any instruction from Rebolledo.2
After Orozco parked his car, he took a duffle bag contain‐
ing cocaine out of the trunk and brought it into a small bath‐
room at the ranch. According to Orozco, Rebolledo followed
him into the bathroom and asked Orozco to leave the drugs
in a specific location on the bathroom floor. Orozco complied.
The CI, who was standing in the doorway of the bathroom,
gave a similar account of the events. However, the CI did not
indicate whether Rebolledo directed Orozco to put the drugs
on the floor, or whether Orozco did so of his own volition.
Orozco then opened the bag to show the CI that it con‐
tained cocaine. After seeing the drugs, the CI left Rebolledo
and Orozco alone in the bathroom for about two minutes.
Orozco testified that he asked Rebolledo “where he wanted
the drugs because I was not going to leave them in my duffle
bag because I told him that that bag was my personal bag.”
Rebolledo responded that he would ask the CI where to put
the drugs, and Rebolledo and Orozco exited the bathroom to‐
gether. Minutes later, police officers arrested Rebolledo and
2 Orozco testified that Rebolledo directed him where to park, but the CI
testified that Rebolledo remained in the barn while Orozco drove onto the
property.

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4 No. 15‐2121
Orozco. The officers found six kilograms of cocaine in the bag
in the bathroom. Rebolledo did not touch the bag or the drugs
at any point.
On September 12, 2013, a grand jury indicted Rebolledo
for possession with intent to distribute five kilograms or more
of cocaine in violation of 21 U.S.C. § 841(a)(1). During the
three‐day trial, the government introduced testimony from
the CI; Orozco (who was also charged in the indictment); the
DEA case agent, Special Agent David Brazao; and another
DEA agent. On July 23, 2014, the jury returned a guilty ver‐
dict.
Before sentencing, Rebolledo requested and participated
in a proffer with the government for purposes of obtaining
safety valve relief. On May 20, 2015, the district court held a
sentencing hearing in which it denied safety valve relief and
sentenced Rebolledo to 120 months in prison, the mandatory
minimum sentence. The district court also denied Rebolledo’s
post‐conviction motions. This appeal followed.
II. Discussion
A. Sufficiency of the Evidence
Rebolledo first argues that the evidence submitted to the
jury was insufficient to support his conviction for possession
of a controlled substance under § 841(a)(1). When considering
a sufficiency of the evidence claim, we “review the evidence
in the light most favorable to the government and ask whether
any rational trier of fact could have found the essential ele‐
ments of the crime beyond a reasonable doubt.” United States
v. Love, 706 F.3d 832, 837 (7th Cir. 2013). “A conviction will not
be overturned unless the record is devoid of evidence from
which a reasonable jury could find guilt beyond a reasonable

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No. 15‐2121 5
doubt.” United States v. Joshua, 648 F.3d 547, 550 (7th Cir. 2011)
(citation and internal quotation marks omitted).
The government argued at trial that Rebolledo construc‐
tively possessed the cocaine because he brokered the August
16 transaction. “Constructive possession is a legal fiction
whereby an individual is deemed to possess contraband items
even when he does not actually have immediate, physical con‐
trol of the objects, i.e., the individual does not possess them in
a literal sense.” United States v. Morris, 576 F.3d 661, 666 (7th
Cir. 2009) (citation and internal quotation marks omitted).
Constructive possession requires proof that the defendant
had the “power and intent” to exercise “ownership, domin‐
ion, authority, or control” over the contraband. United States
v. Campbell, 534 F.3d 599, 606 (7th Cir. 2008); see also United
States v. Kitchen, 57 F.3d 516, 523 (7th Cir. 1995) (“[T]he essen‐
tial proof of possession that we require is some factor indicat‐
ing that [the defendant] had the authority or the ability to ex‐
ercise control over the contraband.”). Accordingly, the gov‐
ernment argued that Rebolledo constructively possessed the
cocaine because he had the ability and intention to control it,
as evidenced by his interactions with Orozco. The jury agreed.
Even after construing the evidence in the light most favor‐
able to the government, Rebolledo’s conviction hangs on a
shred of evidence: Orozco’s testimony that Rebolledo directed
him to put the drugs in a specific spot in the bathroom. None‐
theless, that evidence is sufficient to support Rebolledo’s con‐
viction. The jury could have reasonably concluded that at that
point, Orozco surrendered control over the cocaine to Re‐
bolledo.
In arguing that this evidence is insufficient, Rebolledo
contends that Orozco was not a credible witness. But at this

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6 No. 15‐2121
stage, we are not permitted to weigh the evidence or make
credibility determinations, and we afford great deference to
the jury’s factual findings and credibility determinations. See
United States v. Williams, 553 F.3d 1073, 1080 (7th Cir. 2009).
Minor inconsistencies between Orozco’s and the CI’s testi‐
mony are not enough to show that the CI was incredible, and
the jury was entitled to rely on Orozco’s testimony in its en‐
tirety. See United States v. Reed, 875 F.2d 107, 111 (7th Cir. 1989)
(observing that “[I]t is the exclusive function of the jury to de‐
termine the credibility of witnesses, resolve evidentiary con‐
flicts, and draw reasonable inferences.” (citation and internal
quotation marks omitted)).
Rebolledo also contends that there was insufficient evi‐
dence for the jury to conclude that Orozco surrendered con‐
trol of the drugs to Rebolledo. Rebolledo points out that
Orozco announced that he would not leave the duffle bag and
argues that this statement showed that Orozco retained con‐
trol of the drugs. But Orozco’s statement concerned the duffle
bag—his personal property—and not the drugs inside. If an‐
ything, Orozco’s statement suggests that Orozco had surren‐
dered possession of the drugs to Rebolledo, otherwise, there
would have been no reason for Orozco to announce that he
wished to take the bag.
Somewhat inconsistently, Rebolledo argues that the CI
was the one who controlled the drugs after Orozco placed
them on the floor. To support this theory, Rebolledo notes that
when Orozco asked him where to put the drugs, Rebolledo
answered that they should ask the CI. But the fact that Re‐
bolledo sought input from the CI on where to move the drugs
does not undermine the conclusion that Rebolledo controlled
and thus possessed the drugs. Rebolledo’s job as broker was

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No. 15‐2121 7
to tender the drugs to the CI in exchange for payment. Until
the money changed hands, there was no reason to think that
the CI had a possessory right in the drugs. See United States v.
Manzella, 791 F.2d 1263, 1266 (7th Cir. 1986) (observing that to
establish possession, the defendant must have “ultimate con‐
trol over the drugs” or the right “to possess them, as the
owner of a safe deposit box has legal possession of the con‐
tents even though the bank has actual custody”).
Rebolledo also contends that he could not have possessed
the drugs because they belonged to Ramirez, the supplier. But
Ramirez was not present at the ranch during the transaction—
instead, Ramirez told Rebolledo that Orozco would deliver
the drugs to Rebolledo. Therefore, the evidence is entirely
consistent with the theory that Rebolledo was a stand‐in for
Ramirez during the transaction, with a corresponding right to
control and possess the drugs.
Even assuming for the sake of argument that Rebolledo
did not possess the drugs, the jury had a basis to convict Re‐
bolledo because he aided and abetted Orozco’s possession of
the cocaine. See 18 U.S.C. § 2(a) (“Whoever commits an offense
against the United States or aids, abets, counsels, commands,
induces or procures its commission, is punishable as a princi‐
pal.”); United States v. Ortega, 44 F.3d 505, 507–08 (7th Cir.
1995) (affirming the defendant’s conviction for aiding and
abetting the possession of heroin, even where there was insuf‐
ficient evidence that the defendant himself possessed it, be‐
cause the defendant pointed to the drugs and informed the
purchaser that they were “the best”). Although Rebolledo was
not charged in the indictment with aiding and abetting, it is
permissible to charge a defendant as a principal and convict

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8 No. 15‐2121
him as an aider and abettor. 3 See United States v. Salazar, 983
F.2d 778, 782 (7th Cir. 1993). As in Salazar, the evidence sup‐
ports the necessary elements of aider and abettor liability:
(1) Orozco initially possessed the cocaine and intended to dis‐
tribute it; (2) Rebolledo encouraged and assisted Orozco in
committing that offense; and (3) Rebolledo had the requisite
intent to participate in the criminal activity with the goal of
making it succeed. See id.
In sum, there is sufficient evidence to convict Rebolledo
under either a constructive possession theory or an aiding and
abetting theory.
B. False Trial Testimony
Rebolledo next contends that the government violated his
due process rights when Special Agent Brazao gave false tes‐
timony at trial. We review this constitutional claim de novo.
United States v. Volpendesto, 746 F.3d 273, 289 (7th Cir. 2014).
It is undisputed that Brazao testified inaccurately that the
CI’s recording device captured three hours of conversation on
August 16, and that the recording provided in discovery was
shortened to cut “social conversations” that were unrelated to
the actual transaction. In reality, the recording device stopped
recording after one hour for unknown reasons and failed to
3 Although the government did not focus on an aiding and abetting theory
at trial, it proposed an aiding and abetting jury instruction that the district
court adopted with minor modifications. The district court’s instruction
read: “If you find that [Rebolledo] knowingly aided, counseled, com‐
manded, or induced [Orozco] to commit the crime of possession with in‐
tent to distribute a controlled substance, [Rebolledo] may be found guilty
of that offense if he knowingly participated in the criminal activity and
tried to make it succeed.”

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No. 15‐2121 9
record the drug delivery. On cross‐examination, Brazao testi‐
fied accurately that the recording only lasted for one hour and
that the device was not recording when the drugs arrived at
the ranch.
After the jury returned its guilty verdict, Rebolledo moved
for a new trial based on Brazao’s false testimony. The district
court denied the motion, explaining that there was no basis to
conclude that Brazao intentionally offered the inaccurate tes‐
timony. The court also noted that the defense was able to clear
up any misunderstanding by cross‐examining Brazao and
providing transcripts of the recording to the jury.
We agree with the district court. To prove a violation of
due process on the basis of false testimony, the defendant
must show that: (1) the prosecution’s case included perjured
testimony; (2) the prosecution knew, or should have known,
of the perjury; and (3) there is a likelihood that the false testi‐
mony could have affected the judgment of the jury. United
States v. Saadeh, 61 F.3d 510, 523 (7th Cir. 1995). Rebolledo has
not provided any evidence that Brazao intentionally offered
the false testimony; instead, Brazao’s inconsistent testimony
suggests that he was confused about the length of the record‐
ing. Moreover, Rebolledo had an “adequate opportunity to
expose the alleged perjury on cross‐examination,” undermin‐
ing his claim that the jury relied on the false testimony. Id. Not
only did the defense present excerpts from the recording tran‐
script showing the length of the recording, the defense elicited
factually correct testimony from Brazao on cross‐examina‐
tion. The CI also testified accurately that the device recorded
for one hour, and stated that he did not stop the device from
recording. Because Brazao’s false statements were cleared up,

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10 No. 15‐2121
including by his own testimony on cross‐examination, there
is no basis to conclude that they affected the jury verdict.
Rebolledo also argues that the district court erred by re‐
fusing to allow a spoliation of evidence jury instruction, a
claim we review for abuse of discretion. Russell v. Nat’l R.R.
Passenger Corp., 189 F.3d 590, 593 (7th Cir. 1999). Rebolledo’s
proposed instruction would have informed the jury that if it
determined that the government had recorded the drug trans‐
action, but destroyed parts of the recording in bad faith, the
jury could assume that those destroyed portions were unfa‐
vorable to the government. But there was no evidence what‐
soever that the government destroyed parts of the recording
or tampered with the recording device. To the contrary, the CI
testified that he did not stop the tape recorder. In addition, the
device had stopped prematurely during previous meetings
between the CI and Rebolledo, which suggests a recurring
mechanical issue was to blame. The proposed instruction
would only have confused the issue for the jury, and thus, the
district court did not abuse its discretion in refusing to give it.
See United States v. Dana, 457 F.2d 205, 209 (7th Cir. 1972).
C. Closing Argument
Rebolledo also contends that the government misstated
the law during its closing argument by suggesting that
knowledge of the drugs is sufficient to establish constructive
possession. Similarly, Rebolledo contends that the govern‐
ment attempted to confuse the jury by arguing in closing that
directing Orozco’s car was sufficient to establish “direction”
for purposes of constructive possession. “Where a defendant
asserts that the prosecutor’s closing argument was improper,
we analyze the conduct under the framework of prosecutorial
misconduct.” United States v. Clark, 535 F.3d 571, 580 (7th Cir.

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No. 15‐2121 11
2008) (citation and internal quotation marks omitted). We first
address the alleged misconduct to determine if it was in fact
improper, and if it was, we consider whether the misconduct
prejudiced the defendant. Id.
Rebolledo is incorrect that the government’s closing argu‐
ment suggested that something less than proof of direction or
control of the drugs was necessary for possession.4 Instead,
the government’s closing argument was entirely consistent
with its argument throughout trial: that Rebolledo construc‐
tively possessed the cocaine because he directed and con‐
trolled Orozco. This argument was not improper. Tellingly, as
the district court noted in its denial of Rebolledo’s post‐trial
motions, Rebolledo never objected to the government’s con‐
structive possession argument at trial. As such, there is no ba‐
sis to conclude that the government misstated the law or mis‐
led the jury during its closing argument.
4 In closing, the government argued, in relevant part:
The defendant commanded, controlled, basically, he told
Orozco what to do with th[e] drugs. He knew the drugs
were on the way, and when Orozco arrived in that little
black Honda, it was the defendant who commanded him,
controlled him, told him what to do with the drugs, told
him everything, including where to park. Park your car
there, bring the drugs in, put them in this room, and leave
them for my customer, [the CI]. You put all of that to‐
gether, and you know that the government has proven
beyond a reasonable doubt that the defendant knowingly
possessed a controlled substance.

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12 No. 15‐2121
D. Safety Valve Relief
After trial and before sentencing, Rebolledo requested a
case agent interview with the goal of obtaining safety valve
relief. Rebolledo was granted an interview, but the district
court refused to grant safety valve relief because it found that
Rebolledo’s proffer was not complete and truthful. On appeal,
Rebolledo argues that this conclusion was in error. We review
the district court’s factual findings concerning a defendant’s
eligibility for the safety valve for clear error. United States v.
Ramirez, 94 F.3d 1095, 1099 (7th Cir. 1996).
The safety valve provision of 18 U.S.C. § 3553(f) permits a
court to sentence certain first time, non‐violent drug offend‐
ers, who were not organizers of the criminal activity and who
make a good faith effort to cooperate with the government, to
a sentence under the federal guidelines instead of the appli‐
cable statutory mandatory minimum sentence. United States
v. Montes, 381 F.3d 631, 634 (7th Cir. 2004). A sentencing court
“shall” apply the safety valve provision for any defendant
who meets five criteria. Id. Only the fifth criterion is at issue
in this appeal: whether “the defendant has truthfully pro‐
vided to the Government all information and evidence the de‐
fendant has concerning the offense or offenses that were part
of the same course of conduct or of a common scheme or plan
… .” § 3553(f)(5). The defendant bears the burden of proving
by a preponderance of the evidence his eligibility for safety
valve relief. See Ramirez, 94 F.3d at 1101.
In Rebolledo’s case agent interview, Rebolledo admitted to
participating in the August 2013 transaction. He explained
that he met the CI through a friend, “Individual P,” who had
hired Rebolledo to be his driver. He stated that a year and a
half before the August 2013 drug deal, Individual P offered

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No. 15‐2121 13
him $100 for a ride to the CI’s ranch. Rebolledo claimed that
he was unaware that Individual P was visiting the ranch to
plan a drug deal with the CI.
Rebolledo explained that he contacted the CI in August
2013 because his daughter had expressed interest in seeing
horses. In addition, Rebolledo was in financial trouble and
was looking for additional work with his catering business.
Rebolledo refused to give the CI his real name and instead
used his nickname, “Pelon.”
According to Rebolledo, the CI told him that he was not
interested in Rebolledo’s catering business and offered him a
different job—finding a large quantity of cocaine for the CI to
buy. Rebolledo explained that although he had never dealt
drugs before, he told the CI he would help him find a supplier.
Rebolledo then approached a friend who put Rebolledo in
touch with Ramirez. Rebolledo claimed that he had not met
or spoken to Ramirez before then, and likewise claimed that
he had not met Orozco before August 16. According to Re‐
bolledo, it was not until Ramirez drove Rebolledo to the ranch
that he learned that he would earn $350 per kilogram of co‐
caine sold to the CI.
After the interview, the government explained that it did
not believe that a newcomer to the drug trade, without a rep‐
utation for trustworthiness, could broker a six‐kilogram co‐
caine transaction. Rebolledo continued to deny that he had
been involved in prior drug transactions. He suggested that
Ramirez trusted him with the large transaction because Re‐
bolledo had told Ramirez that he had seen the CI’s buy money.
Rebolledo also explained that the CI’s ranch was famous in

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14 No. 15‐2121
the local Mexican community, and that it was the CI’s reputa‐
tion as a drug dealer and entertainer that encouraged Ramirez
to go forward with the deal.
The district court denied safety valve relief because it was
unpersuaded that Rebolledo spoke truthfully in his interview.
The district court pointed to inconsistent and implausible
statements, including that Rebolledo did not know that he
was aiding in a drug deal when he drove Individual P to the
ranch; the fact that Rebolledo used a pseudonym when he
contacted the CI, “a practice that makes no sense at all for
someone who is applying to be a cook”; and Rebolledo’s as‐
sertion that he had never been a drug dealer before, yet it took
no arm twisting or enticement to convince him to deal kilo‐
gram quantities of cocaine for the CI.
We share the district court’s disbelief that an experienced
drug dealer like Ramirez would allow a novice to broker a
$200,000 drug transaction. Moreover, there is evidence in the
record that casts doubt on several of Rebolledo’s interview
statements, including his claim that he had not been involved
in previous drug transactions. For example, Rebolledo admit‐
ted to driving Individual P to the CI’s ranch eighteen months
before the August 16 transaction. As the district court ob‐
served, Individual P and the CI planned a drug deal during
that meeting. It is difficult to accept Rebolledo’s claim that he
did not know about that drug deal given that Rebolledo con‐
tacted the CI eighteen months later, refused to give the CI his
real name, and then became entangled in a large drug trans‐
action. In light of that evidence and the other suspicious and
inconsistent statements contained in Rebolledo’s proffer, the
district court did not clearly err in refusing safety valve relief.

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No. 15‐2121 15
III. Conclusion
For the foregoing reasons, we A FFIRM Rebolledo’s convic‐
tion and sentence.

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