U.S. v. Cruz-Rea

• Decision Date: 17 November 2010
• Docket Number: Nos. 09-3591,Nos. 10-1355,s. 09-3591,s. 10-1355
• Citation: 626 F.3d 929
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rosalio CRUZ-REA and Zoyla Garcia-Rea, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

626 F.3d 929

UNITED STATES of America, Plaintiff-Appellee,

v.Rosalio CRUZ-REA and Zoyla Garcia-Rea, Defendants-Appellants.

Nos. 09-3591, 10-1355.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 8, 2010.

Decided Nov. 17, 2010.

Matthias D. Onderak, Attorney, Office of the United States Attorney, Evansville, IN, for Plaintiff-Appellee.

Ronald J. Freson, Sr., Attorney, Evansville, IN, Andrew F. Merrick, Attorney, Jenner & Block LLP, Chicago, IL, for Defendants-Appellants.

Before EASTERBROOK, Chief Judge, and BAUER and KANNE, Circuit Judges.

BAUER, Circuit Judge.

Rosalio Cruz-Rea appeals his conviction and sentence for conspiracy to possess with the intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and his conviction and sentence for possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii). Zoyla Garcia-Rea appeals her conviction and sentence for conspiracy to possess with the intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. These cases were consolidated for trial and appeal. We have reviewed the district court's legal conclusions de novo and its findings of fact for clear error.

I. BACKGROUND

Law enforcement authorities launched an investigation in the summer of 2007 into the shipment of cocaine from California and Utah to Indianapolis, Indiana. During the course of this investigation, the Drug Enforcement Administration (DEA) obtained court authority to wiretap twenty-four telephone conversations which featured Spanish speakers using code language to discuss drug activities. One of these conversations involved an individual who offered to sell one kilogram of cocaine for $19,000. He described his cocaine as "good for the frying pan," which meant that his cocaine was of such high quality that it could be used to make crack cocaine. In another telephone conversation, the speaker disclosed his plan to ship cocaine from Utah to Indianapolis via a car hauler carrying a Ford Explorer. Although two witnesses testified to having these two conversations with Cruz-Rea on the telephone, Officer Marytza Toy was the only witness who actually testified that she recognized Cruz-Rea as the speaker in each of the twenty-four recorded conversations, including both of the conversations detailed above. She based her identification on a fifteen second voice exemplar that she listened to at least fifty to sixty times. Admittedly unusual, this voice exemplar was actually a recording of Cruz-Rea's booking process, which consisted of Cruz-Rea saying his name, address, date of birth, and telephone number in English.

Following Cruz-Rea's arrest, a search of his three residences revealed cocaine and distribution materials in each residence, and handguns in the same room as thecocaine and distribution materials in two of the residences.

Near the conclusion of the investigation, authorities observed Garcia-Rea and others loading gift-wrapped packages into a Ford Focus. The DEA advised the Utah State Troopers of this information, and Trooper Nick Bowles then pulled over the Ford Focus for failing to have a license plate light. He noticed the gift-wrapped packages as he approached the car. During the traffic stop, Garcia-Rea and the passenger of the vehicle gave conflicting answers about where they were going; Trooper Bowles then searched the Ford Focus and arrested Garcia-Rea.

After being advised of her Miranda rights, Garcia-Rea admitted that she knew the gift-wrapped packages contained cocaine, that she was transporting the packages in exchange for $500, and that she had made two similar drug runs in the past.

The government called Jose Barragan as a witness during Appellants' consolidated trial. Barragan was a drug dealer, but he did not deal in cocaine and was never a part of Cruz-Rea's conspiracy. He testified that Cruz-Rea and Jose Garcia Franco (Barragan's relative) conspired to traffic cocaine and that Cruz-Rea attempted to recruit Barragan into the conspiracy by offering to advance him one kilogram of cocaine for a later payment of $20,000. Although Barragan refused this offer, Franco nevertheless continued to inform Barragan about the extent of Franco and Cruz-Rea's drug operations. Barragan testified about these statements over Appellants' objections.

A jury found Cruz-Rea and Garcia-Rea guilty of conspiracy to possess with the intent to distribute more than five kilograms of cocaine and found Cruz-Rea guilty of possession with intent to distribute 500 grams or more of cocaine. The district court sentenced Cruz-Rea to 324 months in prison and Garcia-Rea to 120 months in prison. Cruz-Rea and Garcia-Rea now challenge (1) the admissibility of Officer Toy's voice identification testimony; (2) the admissibility of transcripts and their accompanying jury instructions; (3) the admissibility of Barragan's testimony; (4) whether the handguns found near cocaine distribution materials required an offense level increase during Cruz-Rea's sentencing; and (5) the admissibility of evidence recovered from the search of the Ford Focus.

II. DISCUSSION

A. Lay Opinion Voice Identification Testimony

We review the district court's admission of Officer Toy's voice identification testimony for abuse of discretion. United States v. Neighbors, 590 F.3d 485, 492 (7th Cir.2009).

Cruz-Rea argues that Officer Toy's voice identification testimony was improper because the government laid insufficient foundation under Federal Rule of Evidence 901(b)(5). Rule 901(b)(5) provides that the identification of a voice, "whether heard firsthand or through mechanical or electronic transmissions or recording," may be established by opinion testimony that is "based upon hearing the voice at any time under circumstances connecting it with the alleged speaker." Fed.R.Evid. 901(b)(5). We have consistently interpreted this rule to require that the witness have only "minimal familiarity" with the voice. Neighbors, 590 F.3d at 493; United States v. Recendiz, 557 F.3d 511, 527 (7th Cir.2009). Once the court admits voice identity testimony, opposing counsel may cast doubt upon the witness' opinion through cross-examination, additional testimony, or other evidence. See,e.g., United States v. Jones, 600 F.3d 847, 857-58 (7th Cir.2010); Neighbors, 590 F.3d at 494. It is ultimately the trier of fact's responsibility to determine the accuracy and reliability of the identification testimony, and when reaching its determination, the trier of fact may consider circumstantial evidence that tends to corroborate or contradict the identification. Neighbors, 590 F.3d at 493-94; United States v. Mansoori, 304 F.3d 635, 665 (7th Cir.2002); United States v. Degaglia, 913 F.2d 372, 376 (7th Cir.1990).

We cannot say as a matter of law that the low bar of minimal familiarity was not met in this case. Officer Toy testified that she became familiar with Cruz-Rea's voice by listening to an approximately fifteen second voice exemplar at least fifty to sixty times. Officer Toy then identified Cruz-Rea's voice on twenty-four wiretapped telephone conversations, including a conversation in which Cruz-Rea offered to sell cocaine that was "good for the frying pan" and a conversation in which Cruz-Rea discussed his plan to ship cocaine to Indianapolis via a car hauler carrying a Ford Explorer. Two different witnesses testified to having these exact conversations with Cruz-Rea on the telephone. Although neither of the two witnesses offered any voice identification testimony in court, their corroborating testimony tends to establish the accuracy of Officer Toy's voice identification. Given the length of the voice exemplar and the number of times that Officer Toy listened to the exemplar, the district court did not abuse its discretion in determining that the government had laid sufficient foundation for Officer Toy's voice identification testimony under Rule 901(b)(5). See Neighbors, 590 F.3d at 493-94. The accuracy and reliability of the testimony was a question for the jury to weigh, and the court properly admitted the corroborating testimony to aid the jury in this role. Jones, 600 F.3d at 858. We stress, however, that we arrive at this conclusion without the benefit of empirical evidence on the reliability of voice identifications, and as previously cautioned by this court in Jones, we can imagine a case in which the foundation for the voice identification testimony was so flimsy as to be deemed insufficient. Id.

Cruz-Rea also argues that Officer Toy's voice identification was unhelpful and therefore inadmissable under Federal Rule of Evidence 701 because the jury could have listened to the tapes and identified the voices without the aid of Officer Toy's opinion. Rule 701 states that lay opinion is proper when it is "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed.R.Evid. 701 (emphasis added). Although Rule 701 requires that testimony be "helpful," we have never held that testimony is unhelpful merely because a jury might have the same opinion as the testifying witness. See, e.g., United States v. Noel, 581 F.3d 490, 496 (7th Cir.2009); United States v. Towns, 913 F.2d 434, 445 (7th Cir.1990). Accordingly, we affirm the district court's ruling on this issue.

B. Transcripts of Wiretapped Telephone Conversations

Appellants challenge the district court's decision to (1) admit the government's transcripts of twenty-four wiretapped telephone conversations into evidence; (2) allow the jury to use transcripts that identified the alleged speakers by name; and (3) permit the jury to view the transcripts during deliberation. We review these rulings for abuse of discretion.United States v....