860 F.2d 801 (7th Cir. 1988), 86-2709, United States v. Alvarez

Docket Nº:86-2709, 86-2710, 86-2805, 86-2846 and 86-2847.
Citation:860 F.2d 801
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gabriel ALVAREZ, Gustavo Holguin, Leovigilda Rivera, Humberto Olivares Castrellon and Oneyda Zambrana, Defendants-Appellants.
Case Date:October 20, 1988
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 801

860 F.2d 801 (7th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,

v.

Gabriel ALVAREZ, Gustavo Holguin, Leovigilda Rivera,

Humberto Olivares Castrellon and Oneyda Zambrana,

Defendants-Appellants.

Nos. 86-2709, 86-2710, 86-2805, 86-2846 and 86-2847.

United States Court of Appeals, Seventh Circuit

October 20, 1988

Argued Feb. 22, 1988.

Rehearing and Rehearing En Banc Denied in No. 86-2709 Feb. 16, 1989.

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Suzanne Philbrick, Oak Lawn, Ill., Ken DelValle, Sheila M. Murphy, Chicago, Ill., Joshua Sachs, for defendants-appellants.

Helene B. Greenwald, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, COFFEY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Five individuals appeal their convictions for violations of various provisions of the federal narcotics laws. We reverse Gustavo Holguin's continuing criminal enterprise conviction on the ground of insufficient evidence. We vacate Humberto Castrellon's sentence. Both Mr. Holguin and Mr. Castrellon must be resentenced by the district court. In all other respects, we affirm the judgment of the district court.

I

BACKGROUND

A. Procedural Posture

On May 5, 1986, a federal grand jury returned a fourth superseding 120-count indictment against eleven defendants, including the five appellants. Basically, the indictment alleged six different types of crimes, all related to the distribution and sale of narcotics. First, it alleged a narcotics distribution conspiracy in violation of 21 U.S.C. Sec. 846. Specifically, it charged the defendants with conspiring (1) to possess with intent to distribute heroin, cocaine, and marijuana; and (2) to use interstate telephone to facilitate the distribution. Second, the indictment charged a violation of one section of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1962(c). This count alleged that the defendants (1) formed an "enterprise" for the purpose of illegally trafficking in narcotics, and (2) conducted the affairs of

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the enterprise through a "pattern of racketeering activity." The pattern of racketeering activity consisted of multiple "offenses" and "acts" concerning the receipt, concealment, purchase, sale and otherwise involvement in narcotics. Third, the indictment alleged that some of the defendants violated 21 U.S.C. Sec. 848, the continuing criminal enterprise (CCE) or "kingpin" statute. Fourth, the indictment charged several of the defendants with distribution of narcotics, and/or possession with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Fifth, several of the defendants were charged with using the telephone both to facilitate the conspiracy to distribute narcotics and to facilitate the actual distribution of narcotics in violation of 21 U.S.C. Sec. 843(b). Sixth, and finally, two of the defendants, Mr. Holguin and Mr. Castrellon also were charged with traveling in interstate commerce to facilitate the unlawful activity of narcotics distribution in violation of 18 U.S.C. Sec. 1952(a).

Of the eleven defendants originally charged in the indictment, eight were tried together. 1 Five of the eight now appeal. The trial commenced on May 15, 1986 and concluded on July 23, 1986. The jury returned a verdict of guilty on all counts for all of the appellants except for Oneyda Zambrana who was found not guilty of count 19 (alleging the use of a telephone to facilitate a narcotics crime). All of the appellants filed a timely notice of appeal.

B. Facts

This case is the culmination of an extensive undercover and surveillance operation conducted by federal agents in Chicago, Illinois from approximately April 2, 1985 through July 23, 1985. The investigation uncovered evidence that the defendants were engaged in a conspiracy to deal principally in cocaine and, to a lesser extent, heroin and marijuana. During the investigation, agents of the Drug Enforcement Administration (DEA) purchased narcotics from some of the defendants. Agents of the Federal Bureau of Investigation (FBI) and the DEA also engaged in electronic surveillance of telephones at Rudy's Service Station and an apartment on South Whipple Street in Chicago. In addition, the agents conducted physical surveillance of these same two locations. The central figure in the operation was DEA Agent Raleigh Lopez, who posed as a narcotics dealer named Jimmy. On fourteen occasions he obtained cocaine and/or heroin from defendants Juventino Herrera-Rivera (Juventino) (not an appellant) and/or Gabriel Alvarez (an appellant), totaling almost ten pounds.

C. Trial Presentation of the Evidence

At trial, the government presented the evidence that was obtained from the undercover investigation in chronological order, proceeding transaction by transaction. Agent Lopez initially testified about each such transaction. Subsequently, a surveillance agent, or agents, who had observed either the transaction or the events surrounding it, also would testify. The agents so corroborating Agent Lopez' testimony varied from transaction to transaction. Occasionally, some of these other undercover agents accompanied Agent Lopez to purchase narcotics. Several of the transactions also were videotaped and/or photographed. The government introduced these videotapes and photographs into evidence. Finally, the surveillance agents recorded a good deal of telephone conversations. 2 These conversations, principally in Spanish, were recorded onto reel-to-reel tapes. Some of these tapes then were reproduced onto cassettes. The cassettes, in turn, were translated into English transcripts. 3 ]

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These English transcripts, along with the reel-to-reel and cassette tapes, were introduced into evidence and the transcripts were read to the jury. According to the government, the recorded conversations were in a code typically used by drug dealers to disguise the illegality of their business.

II

DISCUSSION

Voice Identification Evidence

A. Foundation for Admission

1. Contentions of the Parties

Appellant Gustavo Holguin, joined by Leovigilda Rivera (who adopts the arguments presented by Mr. Holguin), contends that the government failed to lay a proper foundation to identify the appellants as those whose voices were recorded. He specifically contends that the manner of the recording--telephone to reel-to-reel tape to cassette--was insufficiently accurate to identify the speakers. He then submits, essentially, that the government's voice identification witnesses failed to authenticate the recorded conversations as being between the defendants. For instance, he contends that the witnesses (1) did not testify as to "what specific tapes ... they listened to when they identified the voices in question," Holguin's Br. at 79; (2) did not testify as to "when, where, how or who else was present when they heard what ever [sic] tapes they heard," id.; and (3) did not listen to tapes in open court for identification before the jury.

In contrast, concerning the accuracy of the recordings, the government contends that there was ample evidence to establish that every piece of equipment involved in the production of the tapes worked properly in producing an accurate recording of the appellants' voices. As to the authenticity of the recordings, the government contends that the issue was never raised before the district court and, therefore, that the argument is waived on appeal. On the merits, the government argues that its witnesses had sufficient familiarity with Mr. Holguin's and Ms. Rivera's voices to identify them as speakers on the tapes.

2. Analysis

Upon reviewing the record, we believe that Mr. Holguin preserved, albeit marginally, all these issues. Accordingly, we address their merits.

We previously have held that "[t]ape recordings are only admissible if the Government can establish, by clear and convincing evidence, that the recordings are 'true, accurate, and authentic recording[s] of the conversation[s], at given time[s], between the parties involved.' " United States v. Keck, 773 F.2d 759, 766 (7th Cir.1985) (quoting United States v. Faurote, 749 F.2d 40, 43 (7th Cir.1984)). The district court must determine whether "the recordings involved conversations that occurred between defendants in this suit." Id.

Here, the district court determined that the government had met its burden and admitted the voice recordings and transcripts into evidence. It is well established that a district court's general evidentiary rulings will be reversed only upon a showing of clear abuse of discretion. United States v. Garner, 837 F.2d 1404, 1416 (7th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988); Davis v. Lane, 814 F.2d 397, 399 (7th Cir.1987); accord Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1266 (7th Cir.1988). This standard also governs our review of a district court's decision to admit voice recordings. Faurote, 749 F.2d at 43; see United States v. Hughes, 658 F.2d 317, 322 (5th

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Cir.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982); United States v. Blakey, 607 F.2d 779, 787 (7th Cir.1979).

  1. true and accurate recordings

    The government presented clear and convincing evidence to show that the conversations were recorded truly and accurately. First, it demonstrated that the lines used in the wiretapping of Rudy's Service Station and the South Whipple Street apartment were "voice quality" lines. Ronald Kwasny, a security manager for Illinois Bell Telephone Company (Illinois Bell), testified that a voice quality line is of the same quality as a residence or business telephone...

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