U.S. v. Magana

• Citation: 118 F.3d 1173
• Decision Date: 27 August 1997
• Docket Number: 95-2641,95-2642,95-2791,95-2644,95-2643,95-2953 and 95-3336,Nos. 95-2640,s. 95-2640
• Parties: 47 Fed. R. Evid. Serv. 626 UNITED STATES of America, Plaintiff-Appellee, v. Ramiro MAGANA, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1173

118 F.3d 1173

47 Fed. R. Evid. Serv. 626

UNITED STATES of America, Plaintiff-Appellee, v. Ramiro MAGANA, et al., Defendants-Appellants.

Nos. 95-2640, 95-2641, 95-2642, 95-2643, 95-2644, 95-2791,

95-2953 and 95-3336.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 29, 1996.

Decided July 18, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Aug. 27, 1997.

Barry Rand Elden, Chief of Appeals, Charles Ex (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

Ronald J. Clark (argued), Chicago, IL, for Defendant-Appellant Ramiro Magana.

Kevin E. Milner (argued), Palatine, IL, for Defendants-Appellants Raul Aguilera and Wilson Iturralde.

Jo-Anne Wolfson, Tampa, FL, James J. Cutrone (argued), Chicago, IL, for Defendant-Appellant Santiago Rabon.

Brian M. Collins (argued), Constantine N. Bastounes, Collins & Bastounes, Chicago, IL, for Defendant-Appellant Robert Ameneiro.

James J. Cutrone (argued), Chicago, IL, for Defendant-Appellant Mukglis Toma.

Scott J. Frankel (argued), Frankel & Cohen, Chicago, IL, for Defendant-Appellant Ismael Rosa.

Jeffrey E. Stone (argued), Ira M. Kalina, McDermott, Will & Emery, Chicago, IL, for Defendant-Appellant Jose Pinto.

Before CUMMINGS, COFFEY and DIANE P. WOOD, Circuit Judges.

COFFEY, Circuit Judge.

This case presents the consolidated appeals of eight Defendants who were charged with conspiracy to distribute cocaine and marijuana and were convicted of a variety of federal narcotics offenses. Defendants on appeal raise challenges to their convictions and sentences. We affirm.

I. Factual Background

The conspiracy to distribute cocaine and marijuana centered around Defendant-Appellant Mukglis Toma (Toma), who was a wholesaler of cocaine and marijuana in the Chicago area. Toma purchased quantities of cocaine and marijuana from suppliers, and resold it to street dealers, who in turn sold it to their clients. Toma's cocaine suppliers included Defendants-Appellants Ramiro Magana (Magana), Santiago Rabon (Rabon), Jose Pinto (Pinto), Raul Aguilera (Aguilera), and Wilson Iturralde (Iturralde). Toma was also supplied cocaine by Ramon Valencia (Valencia), who worked with Magana but was not named in the superseding indictment, and Rodolfo Garcia (Garcia), who was indicted, but ultimately agreed to testify for the government in exchange for entering a plea of guilty to reduced charges. Garcia supplied Toma with marijuana as well.

A number of individuals assisted Toma or were supervised by him in the furtherance of the drug distribution scheme. All of these individuals-George Ishu (Ishu), Doris Ress (Ress), Ammanuel Youkhanna (Youkhanna), and Wesam Youmaran (Youmaran)--were named in either the original or superseding indictment, but they were not listed as Defendants in the instant case.

Toma resold the cocaine and marijuana to Defendants-Appellants Robert Ameneiro (Ameneiro) and Ismael Rosa (Rosa). ¹ Toma also sold cocaine and marijuana to Miguel Rivera (Rivera), Janice King (King), Ishu, Youkhanna, and Herman "Yum" Matthews (Matthews). These latter five individuals were indicted, but were not named in the instant case. Finally, Toma sold cocaine to Stuart Glaser (Glaser), who, for reasons we will discuss, was not ultimately indicted in this case.

On July 21, 1993, after purchasing a quarter-kilogram of cocaine from Toma at Toma's mother's residence on the northwest side of Chicago, Glaser departed from the residence in his Jeep. Unbeknownst to Glaser, the residence was under surveillance by officers of the Chicago Police Department assigned to work on a special FBI narcotics task force. As Glaser left the house in his Jeep, the officers kept him under surveillance, until Glaser sped away down an alley, where the officers followed and observed Glaser throwing out his recent cocaine purchase. The officers in pursuit retrieved the cocaine, and apprehended Glaser later that day.

After his arrest, Glaser agreed to assist the government and began recording the phone calls he made to Toma. During these taped conversations Glaser stated that he would continue to purchase cocaine from Toma. At the suggestion of FBI agents, Glaser also supplied Toma with a cellular phone furnished by the FBI. Glaser represented to Toma that, because the phone was "digital," it was untraceable and Toma would not have to pay for the calls he made. In fact, all of Toma's phone calls from this phone were subject to a "pen register." ² During this period, Glaser and Toma both spoke over the phone several times concerning cocaine transactions, and met in person on numerous occasions. Each time they met in person, Glaser was equipped with a recording device.

In addition to the taped conversations between Toma and Glaser, and conversations between Toma and the other members of the conspiracy, the government obtained wiretap authorization for the telephones of Aguilera and Valencia. The roughly 650 conversations intercepted yielded evidence of eighteen separate narcotics transactions over the five-month period from January through May 1994. In January 1995, a Grand Jury returned a 66-count superseding indictment against a total of sixteen individuals for various narcotics crimes arising from the conspiracy. ³ The eight Defendants-Appellants here were tried jointly, and following a five-week jury trial, commencing February 22, 1995, all eight were found guilty on April 4, 1995, of conspiracy to distribute cocaine and marijuana. ⁴ At Defendants' trial, 428 of the approximate 650 conversations which had been taped were introduced and received into evidence. In addition to the conspiracy charge, the jury found each Defendant guilty of at least one other count in the indictment. Defendants have individually and jointly challenged their convictions and sentences.

II. Issues on Appeal

I. Whether the district court's rulings denying Defendants' motions for a mistrial and for a voir dire of the jury were proper;

A. Defendants' motion for mistrial;

B. Defendants' motion for voir dire of the jury;

II. Whether the district court properly denied Defendants' motions for severance;

A. Defendants' motion for severance based on alleged variance between indictment and proof at trial;

B. Whether the indictment was duplicitous;

C. Pinto's motion for severance based on alleged exculpatory testimony;

III. Whether the district court erred in denying Defendants' motions for mistrial based on alleged prosecutorial misconduct;

A. Alleged "coaching" of witness Youmaran;

B. Alleged "coaching" and subornation of perjury by Ishu;

C. Alleged subornation of perjury by witness Ress;

D. Questioning concerning arson at a building owned by Aguilera and Iturralde;

IV. Whether sufficient evidence supported the convictions of various Defendants;

A. Rosa;

B. Rabon;

C. Pinto;

V. Whether the district court's enhancement of Toma's sentence under § 3B1.1(a) of the Sentencing Guidelines was proper;

VI. Whether the district court's attribution of certain drug quantities to Toma for sentencing purposes was proper;

VII. Whether the trial court properly declined to grant additional peremptory challenges to Defendants;

VIII. Whether the district judge's ruling admitting tape recordings based on the identification of the voices of Aguilera and Iturralde was proper;

IX. Whether the trial judge erred in declining to give Ameneiro's proposed instruction concerning the reliability of voice identification;

X. Whether the mandatory minimum sentence Rabon received is constitutional; and

XI. Whether the district court's refusal to permit Rosa to collaterally challenge a prior conviction used to enhance his sentence was proper?

I. Whether the district court's rulings denying Defendants' motions for a mistrial and for a voir dire of the jury were proper.

On appeal, Defendants initially argue that the judge erred in denying their motion for a mistrial, and in refusing to conduct a voir dire of the jury, based on the presence in the jury room of transcripts of certain tapes which had been admitted in evidence but never played at trial.

A. Defendants' motion for mistrial

During her testimony, government witness Ress authenticated a number of the tapes the government introduced in evidence. She testified that she was familiar with the voices of Defendants (except Aguilera and Iturralde), and further that she had reviewed the transcripts. She testified that the transcripts accurately reflected the conversations on the tapes (except the Spanish tapes, as Ress did not speak Spanish) and also properly identified the speakers on the tapes.

During the trial, the government played only 428 of the roughly 650 tapes received in evidence, leaving more than 200 unplayed. The tapes played were of conversations in either English, Spanish, or Assyrian. The jury was provided a binder during trial which contained transcriptions of all of the roughly 650 recorded conversations, and which they were referred to and examined while tapes were being played.

Four days prior to closing arguments, the trial judge discussed with the lawyers out of the jury's presence which exhibits would be given to the jury for consideration during deliberations. Some of Defendants' lawyers sought to bar the jury from receiving transcripts of the English-language tapes, but the trial judge overruled their objections, ruling that, since there had been so many tapes played throughout the course of the trial, all of the transcripts, whether they were of English or foreign-language conversations, would be made available to the jury during their deliberations. ⁵ At that time, the judge also directed the respective attorneys to place the tapes and transcripts on a table, in order that they would be available to all of them for inspection prior to their submission to the jury. The trial judge specifically informed all of the attorneys for both sides that he expected them to review the exhibits prior to them...