U.S. v. Zambrana

Decision Date07 March 1988
Docket NumberNos. 86-1115,86-1402 and 86-1501,s. 86-1115
Parties25 Fed. R. Evid. Serv. 55 UNITED STATES of America, Plaintiff-Appellee, v. Jesus ZAMBRANA, Sr., Charles Cole and Jay Zambrana, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Armand L. Andry, Oak Park, Ill., Hugo E. Martz, Valpariso, Ind., for defendants-appellants.

Gregory A. Vega, Asst. U.S. Atty., James G. Richmond, U.S. Atty., Hammond, Ind., for plaintiff-appellee.

Before WOOD, CUDAHY, and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

The defendants/appellants, Jesus Zambrana, Sr., Jay Zambrana, and Charles Cole are three of 32 codefendants indicted on various drug charges, including charges of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841, conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846, and using a telephone in furtherance of the conspiracy in violation of 21 U.S.C. Sec. 843(b). Each defendant was individually tried and convicted. Each of the three defendants appeals his conviction on similar, although not identical, grounds. We affirm the conviction of each defendant.

I

The thirty-two indictments handed down against the members of this conspiracy were the result of months of investigation on the part of the United States Drug Enforcement Agency (the "DEA") into the activities of a suspected cocaine-distribution network in northern Indiana. The DEA coordinated their investigation with a number of local law enforcement agencies. Eventually, the investigation focused on the defendant-appellant Jesus Zambrana's family and his associates. Because the conspirators were in large part family 1 members, undercover agents did not attempt to infiltrate the group. Instead, on the basis of information received from confidential informants, the government petitioned the district court to authorize the placement of an electronic surveillance wire tap on Jesus Zambrana's private telephone between March and July, 1985. Information received over this wire tap during the week prior to April 25, 1985, led law enforcement officers to believe that Ernest Lonzo and another unknown individual were transporting narcotics from Miami, Florida, to Jesus Zambrana's residence in Gary, Indiana. On the basis of this wire tap information, DEA agents, with the assistance of police officers from Lake County, Indiana, and East Chicago, Indiana, initiated the surveillance of Interstate Highway I-65 in the vicinity of Crown Point, Indiana, at approximately 8 p.m. on April 25, 1985. Before commencing the surveillance, a DEA agent met with Lake County, Indiana, police officers and provided them with a list of five individuals suspected as being involved in the transportation of narcotics between Florida and Indiana, as well as a list of four vehicles believed to be used by these suspects.

At approximately 9 p.m. on April 25, during their surveillance of I-65 near the northbound ramp of Indiana Highway # 231, Lake County, Indiana, Police Officer Timothy Downs and DEA Special Agent Michael Ehrsam observed a rose-colored Oldsmobile Delta 88 traveling northbound on I-65, well below the speed limit, and floating from one lane to another. 2 Because Officer Downs believed that the vehicle was being driven in an erratic manner, he followed the car for some four miles and pulled the driver over on suspicion of drunk driving.

Following the stop of the Oldsmobile, the driver produced a driver's license identifying him as Ernest Lonzo, whose name was referred to in the DEA's list of those suspected in the transportation of narcotics from Florida to Indiana. The passenger identified himself as Charles Cole, one of the defendants-appellants. 3 After using Lonzo's driver's license for an I.D. check, Officer Downs arrested Lonzo for driving with a suspended license and conveyed Lonzo and Cole to the Lake County, Indiana, jail. Cole was released shortly thereafter.

After Lonzo's arrest, the Oldsmobile was transported to and impounded in the Lake County, Indiana, police garage. On the following day, April 26, 1985, DEA Special Agent Elaine Harris obtained a warrant from a United States magistrate in Hammond Indiana, authorizing a search of the automobile. 4 Later that day, she and East Chicago police officer Fernando Villicana proceeded to search the vehicle. During the search, Officer Villicana discovered a hidden compartment in the trunk of the car. The compartment contained six packages of cocaine with an estimated street value of $2,000,000, as well as $960 in cash. Luggage containing items of clothing was also found in the trunk of the vehicle. Following the car search but before the custodial inventory of the Oldsmobile's contents, the police mistakenly released the vehicle to an unauthorized individual without removing the personal effects contained in the automobile referred to above. Police retrieved the car three days later, but the contents of several of the suitcases had been removed.

Each of the defendants was tried separately on the various drug and wire fraud charges. The wire tap on Jesus Zambrana's telephone produced the bulk of the evidence introduced by the government to link the Zambranas (Jesus and his son Jay) and Charles Cole with the attempted delivery of the seized cocaine from Florida to Indiana. In each defendant's trial, the evidence against the defendants consisted primarily of approximately thirty of these tapes (two to three hours of a total three thousand six hundred hours during the time Zambrana's telephone was monitored), which contained conversations between Jay and Jesus Zambrana and several co-conspirators, including Ernest Lonzo. Although the word "cocaine" was never referred to in the telephone conversations, 5 the government contended at trial that the cryptic language used in the conversations, combined with the context of the statements and other circumstantial evidence in the case, indicated that the speakers were referring to Cole and Lonzo's planned delivery of cocaine to the Zambrana residence on April 25.

These taped conversations (spoken in a mixture of English and Spanish) were played to the jury and/or judge at each defendant's trial, respectively. As an aid to the jurors while listening to the tapes, the trial court allowed the jurors to use transcripts of those conversations containing a government-prepared translation to English of the Spanish excerpts of the recordings. Two expert language translation witnesses, Victoria Funes and Ava Cooper, testified as to the accuracy of the government's translation. 6 The court admitted only the two to three hours of tape, but not the government-prepared transcripts of those tapes, as substantive evidence. Additionally, the names of the persons speaking on the tapes were inserted in the margin of the transcripts.

The evidence against the defendant-appellant Charles Cole was largely circumstantial, as in many conspiracy cases. The government introduced a number of the tape-recorded conversations between the Zambranas and the other co-conspirators relating to Cole's trip to and from Florida with Lonzo in an attempt to demonstrate that Cole was a knowing participant in the delivery scheme. Cole, on the other hand, testified that he did not know Lonzo was transporting cocaine and that his only purpose for traveling with Ernest Lonzo to and from Miami on April 22, 1985, was to look for a job. Cole also stated that his luggage contained his resumes, along with the classified advertising sections of various Georgia and Florida newspapers listing a number of job openings he had circled, and a folder with materials on how to look for a job. He further testified that he had prepared his resume during a four-week course he had taken earlier in the year on conducting a job search. Although Cole alleged that he was going to Florida to look for a job, on cross-examination, Cole also testified that: (1) he could not remember the names of any persons he talked to in Florida about locating a job; (2) he could not remember the name of even one business where he had allegedly left his resume; (3) he didn't know which cities they were going to or where or how long they would stay; and (4) Lonzo asked Cole to go to Florida with him only about two hours before they actually departed.

Further, contrary to Cole's assertion that his luggage contained resumes, Special Agent Harris testified that her search of Cole's luggage and her search of the entire vehicle failed to reveal the existence of any resumes, much less any other job search material. Cole asserted at trial that his job search materials, including the resumes that he allegedly had printed earlier in the year and had brought with him to Florida, must have been lost when the vehicle was mistakenly released.

Jesus Zambrana was tried before a jury on October 21, 1985, and convicted on all but four of the counts set forth in the indictment, and was sentenced to a term of forty (40) years of imprisonment. Jay Zambrana's case was tried without a jury to the court; the judge found him guilty of 22 of the indictments charged and sentenced him to a term of thirty-five (35) years of imprisonment. Charles Cole was charged in five counts of the indictment and a jury returned a verdict of guilty on all counts. Cole was sentenced to a term of two (2) years of imprisonment.

Because Jesus and Jay Zambrana's contentions on appeal are the same, we address their arguments jointly. Although Cole adopted all of his co-defendants' arguments in his brief, he raises two other specific contentions in his particular case: (1) that the government's loss of Cole's alleged resumes constitutes a violation of his due process rights under Brady v. Maryland, and (2) that the trial court's admission of the aforementioned tapes against him constitutes reversible error since the conversations contained in the tapes consisted...

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