U.S. v. Vega
| Decision Date | 17 October 1988 |
| Docket Number | No. 87-2766,87-2766 |
| Citation | 860 F.2d 779 |
| Parties | 27 Fed. R. Evid. Serv. 561 UNITED STATES of America, Plaintiff-Appellee, v. Felipe VEGA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Thomas A. Gibbons, Mitchell D. Kreiter & Associates, Chicago, Ill., for defendant-appellant.
Michael A. Thill, Asst. U.S. Atty., James G. Richmond, U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before POSNER, COFFEY and FLAUM, Circuit Judges.
Felipe Vega appeals his convictions and sentences on charges of conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. Secs. 846, 841(a)(1) and of utilization of a communications facility in committing such an offense in violation of 21 U.S.C. Sec. 843(b). We affirm.
Felipe Vega was originally charged in a 61-count indictment charging 32 defendants with various drug conspiracy violations. This was the same indictment involved in our decision in United States v. Zambrana, 841 F.2d 1320 (7th Cir.1988). As we detail, infra, Vega's case was severed, on his own motion, from those of the other defendants named in the Zambrana indictment.
Vega's indictment stemmed from a United States Drug Enforcement Agency (DEA) investigation, coordinated with local law enforcement agencies, of drug trafficking carried on by the Zambrana family and others in the northwest Indiana area. As part of the investigation a court-authorized wiretap was placed on the telephone at the residence of Jesus Zambrana in Gary, Indiana, from March to July, 1985. On the basis of the wiretap it was learned that the Zambranas were carrying on a sophisticated drug trafficking operation and were to receive a cocaine shipment in Gary, Indiana, on April 25, 1985. This shipment originated with an Antonio Dominguez in Miami, Florida. The cocaine was to be transported to the Zambranas by automobile.
On the evening of April 25, 1985, the DEA established surveillance at various points on highway routes leading into Gary, Indiana. The purpose of this surveillance was to intercept a vehicle transporting suspected drugs from Florida to Gary, Indiana. As an aid to the surveillance procedure, DEA Agents Michael Ehrsam and Elaine Harris prepared a list containing names of possible drivers of the vehicles as well as descriptions of the cars.
As part of this surveillance operation, DEA Agent Ehrsam and four Lake County, Indiana, Sheriff's Officers stationed themselves on the northbound lanes of Interstate 65 at the intersection of State Route 231 in the Crown Point, Indiana, area. This location was roughly 15 miles from the Zambrana house. While on surveillance, Agent Ehrsam and Lake County, Indiana, Sheriff's Department Patrolman Timothy Downs observed a rose-colored 1984 Oldsmobile driving in an erratic manner. Ehrsam and Downs followed the vehicle for three or four miles and then directed the driver to pull over. Officer Downs requested the driver's license and registration of the vehicle's operator. The driver's name was Ernest Lonzo, an individual whose name appeared on the DEA's list of possible drug transfer drivers. Officer Downs then ran a check on Ernest Lonzo's driver's license as well as the involved vehicle's registration. Downs discovered that Lonzo was operating a vehicle with a suspended driver's license. Lonzo was arrested and transported to the Lake County Sheriff's Department, together with his passenger, Charles Cole.
Lonzo's automobile was impounded at the Lake County Sheriff's Garage in Crown Point, Indiana, and was thereafter searched pursuant to a search warrant issued on April 25, 1985. Found in the automobile were two brown plastic garbage bags and two packages bound with grey furnace tape. The two garbage bags each contained two packages bound with grey furnace tape. All six of the packages bound with grey furnace tape contained a white powdery substance. The packages were sent to the DEA lab where they were tested and found to contain 5,847.01 grams of 92 per cent pure cocaine. 1
As in many drug conspiracy cases, the evidence linking Felipe Vega with the claimed Zambrana drug conspiracy was circumstantial. The evidence included recordings of telephone calls Vega and his wife made to Jesus Zambrana's residence between March 21, 1985 and April 30, 1985, and between June 14, 1985 and July 2, 1985. Also significant were inferences drawn from the correlation between the dates and timing of these telephone calls and suspected drug deliveries to the Zambrana residence.
The identification of the participants in the recorded telephone conversations was questioned at trial. In the eight tapes involving Felipe Vega, his voice was identified by St. John, Indiana, Police Detective Bernard J. Johnsen, who testified on both direct and cross-examination that it was his opinion that Vega's voice was recorded on eight tapes out of the nine tapes submitted to him for identification. 2 As indicated previously, pursuant to this procedure Detective Johnsen identified Vega's voice on eight of the tapes given him, but stated that Vega's voice was not on the other tape presented for identification. On cross-examination Officer Johnsen identified Vega in the following fashion:
Officer Johnsen's identification of Vega's voice on the tapes was based upon a comparison of Vega's recorded voice with Johnsen's recollection of Vega's voice during a two-hour conversation he had with Vega approximately two years prior to trial. Johnsen's conversation with Vega at that time had been in English, although he had also had an opportunity to listen to Vega speaking in Spanish with another agent during the same two-hour conversation. Vega attempted to challenge Johnsen's lay identification of Vega's voice on the basis of Officer Johnsen's inability to speak Spanish and the fact that Johnsen had not previously spoken with Vega on the telephone. It is interesting to note that the cross-examination of Johnsen did not focus on his observation of the specific aspects of Vega's voice. 3
Most of the telephone calls between Felipe Vega and the drug headquarters at the Zambrana residence were in Spanish. Much of the conversation was of an informal nature, with the parties advisedly not using words referring to drugs. The government, however, focuses on certain code words which it contends are known and accepted in the drug world.
Tom Lovely, an active and convicted member of the same Zambrana drug conspiracy, testified that Jay Zambrana instructed Lovely to use "code words" when speaking about drugs on the telephone. Lovely said he used whatever word came to mind, such as "stuff " or "shit." Although Lovely gave "chicken " as an example of a possible code word, he stated that he himself had never used that particular word for drugs.
In his conversations with the Zambranas, Vega frequently used words such as "chickens," "roosters," or "it," which the government contends represented code words commonly used in the drug world. It should be noted that while Tom Lovely, when questioned, did testify that the Zambranas had chickens on their farm, the record is devoid of evidence either that the Zambranas or Vega bartered, traded or dealt in chicken sales at any time.
The use of "code words" like "chicken" in Vega's conversation with the Zambranas can be noted in the August 11, 1985 conversation between Felipe Vega and Jay Zambrana, which is the basis of a use of a communications facility charge against Vega:
This conversation followed a March 21 conversation between Vega and another person at the Zambrana residence. In this conversation Felipe Vega asked if Jesus Zambrana could get him four "chickens." This conversation also followed a March 29 taped conversation in which Vega spoke at length with someone at the Zambrana residence concerning exchanges of a "chicken " and "roosters." Subsequently, on April 30, 1985, Felipe Vega had another conversation with a person at the Zambrana residence. In this conversation Vega stated that "it " was good. Later Vega and this person spoke about "the price" Jesus Zambrana was asking. Each of these conversations took place in close and near proximity to the time of the law enforcement officers' April 25 interception of the Zambranas' drug delivery.
The next conversation between Vega and the Zambrana household occurred on June 14, 1985, when Vega spoke with Jesus Zambrana. Zambrana said that they were "still waiting." In light of the drug shipment the government contends was en route to Zambrana, referred to in the June 23, 1985, conversation between known drug conspirators Antonio Dominguez and Jesus Zambrana, the jury could very logically have inferred that Zambrana and Vega were "still waiting" with bated breath for the expected drug shipment. After speaking about work-related matters, Vega and Zambrana ended their conversation by agreeing that Vega would call the next day. On June 18, 1985, Jesus Zambrana told Vega that they were "still waiting for (unintelligible...
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