U.S. v. Tapia-Ortiz, TAPIA-ORTIZ and E

• Decision Date: 09 May 1994
• Docket Number: Nos. 757,TAPIA-ORTIZ and E,D,332,s. 757
• Citation: 23 F.3d 738
• Parties: 40 Fed. R. Evid. Serv. 1069 UNITED STATES of America, Appellee, v. Juan Antoniornesto Velez-Morales, Defendants-Appellants. ockets 92-1435, 93-1322.
• Court: U.S. Court of Appeals — Second Circuit

Page 738

23 F.3d 738

40 Fed. R. Evid. Serv. 1069

UNITED STATES of America, Appellee, v. Juan Antonio TAPIA-ORTIZ and Ernesto Velez-Morales Defendants-Appellants.

Nos. 757, 332, Dockets 92-1435, 93-1322.

United States Court of Appeals Second Circuit.

Argued Dec. 13, 1993.

Decided May 9, 1994.

Barry E. Schulman, Schulman & Laifer, Esqs., Brooklyn, NY, for defendant-appellant Tapia-Ortiz.

Richard Ware Levitt, New York City, for defendant-appellant Velez-Morales.

Bridget M. Rohde, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty. for the E.D. of N.Y., David C. James, Asst. U.S. Atty., Brooklyn, NY, of counsel), for appellee.

Before: MINER and WALKER, Circuit Judges, and MUNSON, District Judge. ^*

WALKER, Circuit Judge:

Defendants Juan Tapia-Ortiz and Ernesto Velez-Morales appeal from judgments entered in the United States District Court for the Eastern District of New York (Thomas C. Platt, Jr., Chief Judge ), convicting them after a jury trial of conspiring to distribute heroin and cocaine in violation of 21 U.S.C. Sec. 846, and of possessing cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Defendants argue that their convictions should be reversed because the Government improperly bolstered its case by introducing expert testimony regarding the habits of narcotics traffickers. Tapia-Ortiz also contends that his sentence was erroneously determined based in part on his alleged participation in an uncharged but related heroin transaction. We reject defendants' argument regarding the expert testimony and affirm the convictions but vacate Tapia-Ortiz's sentence and remand for further proceedings.

BACKGROUND

The evidence at trial, presented through two informants and several law enforcement officers, demonstrated that from November 1990 to September 1991, both defendants were involved in a conspiracy to distribute heroin and cocaine.

The defendants' involvement in the heroin trade was established by an informant, Hector Hernandez, who testified that on ten to fifteen occasions in 1990 and 1991 he bought heroin from the defendants at one or another of two bars in Brooklyn, one of which was owned by Tapia-Ortiz. Beginning in March 1991, Hernandez recorded his purchases in a composition book in which he kept track of his narcotics transactions. Hernandez testified that he contacted Tapia-Ortiz, whom he knew as "Flaco," by using an agreed-upon beeper system. After beeping Tapia-Ortiz, Hernandez would enter a special code number after his telephone number so that Tapia-Ortiz would know who was calling. When Velez-Morales was arrested, he had on his person a business card from one of the bars with Hernandez's beeper number and code number written on it.

Defendants' cocaine trafficking was established by several law enforcement officers and an informant named Aldimor Isaziga Romero. Working with undercover agents, Isaziga negotiated with Tapia-Ortiz, also known to him as "Flaco," for the sale to defendants of approximately twenty kilograms of cocaine for $260,000, with $100,000 due in advance. In August 1991, Isaziga received the advance monies: $22,000 from an associate of defendants and $78,000 directly from Tapia-Ortiz. Both payments took place in Florida and were in cash. Several days later in New York, Isaziga and an undercover agent brought the cocaine in the trunk of a car to the parking lot of a hotel on Long Island and met the defendants in the hotel. The agent escorted Velez-Morales to the car, opened the trunk to show him the twenty kilograms of cocaine, gave him the car keys, and allowed him to drive away. After leading officers on a high-speed car chase, Velez-Morales was apprehended. Tapia-Ortiz was arrested in his car shortly after leaving the hotel. At the time, he was in possession of a beeper and business cards with contact numbers written on them.

In addition to the eyewitness testimony as to these events, the Government introduced expert testimony on narcotics trafficking through Special Agent James Glauner of the Drug Enforcement Administration. Over defense objection, Agent Glauner testified about the amount and purity of the cocaine possessed by defendants; the dosages it would yield and their street value; the ways in which narcotics traffickers conceal their activities by using false names, cash, and beepers; and the practice of using a beeper code so that the receiver will know who is calling. Glauner also concluded after reviewing Hernandez's composition book that it was an accounting record of heroin transactions.

The jury found defendants guilty of conspiring to distribute heroin and cocaine and of possessing cocaine with the intent to distribute it. Tapia-Ortiz received a prison term of 480 months and five years supervised release and was given a $100,000 fine and a $100 special assessment. Velez-Morales was sentenced to prison for 210 months, to be followed by five years supervised release, and was given a $100 special assessment. Both sentences were imposed under the Sentencing Guidelines.

Tapia-Ortiz's greater sentence was based in substantial part upon a determination of his base offense level that, in addition to the offenses for which he was convicted, included his alleged participation in planning an uncharged but related heroin transaction. The inclusion of the heroin transaction was based upon testimony provided by Special Agent Allan Payne of the United States Customs Service at a Fatico hearing that Isaziga had told Payne that the cocaine deal was simply a "test run" for a 60 to 100 kilogram heroin deal and that Tapia-Ortiz was supposed to serve as the buyer of both the cocaine and the heroin.

DISCUSSION

I. The Use of Expert Testimony

The decision to admit expert testimony under Rule 702 of the Federal Rules of Evidence is left to the "broad discretion" of the district court and will be sustained unless "manifestly erroneous." United States v. Nersesian, 824 F.2d 1294, 1308 (2d Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 357, 98 L.Ed.2d 382 (1987). Defendants contend that the trial court committed such manifest error in admitting the expert testimony of Agent Glauner because the subject matter of his testimony was not beyond the ken of the jury. Defendants rely primarily on United States v. Cruz, 981 F.2d 659 (2d Cir.1992), and United States v. Castillo, 924 F.2d 1227 (2d Cir.1991). In both cases, we reversed the defendants' convictions because the Government improperly used expert testimony on the drug trafficking trade.

In Cruz, we held "that expert testimony cannot be used solely to bolster the credibility of the government's fact-witnesses by mirroring their version of events." 981 F.2d at 664. In that case, a law enforcement official gave expert testimony about the conduct of brokers who arrange drug transactions between purchasers in Albany and suppliers in the Washington Heights area of Manhattan which corresponded closely to earlier factual accounts of the defendant's alleged activities. In Castillo, a detective testified about typical operating methods of Washington Heights drug dealers, describing their work apartments, the drug-related materials typically found within these apartments, and the practice of making potential customers snort cocaine. We held that the admission of this expert testimony was erroneous because the jury was capable of understanding these matters without the expert's assistance. 924 F.2d at 1233. In both cases, the Government relied heavily on the expert testimony during summation, stressing the similarities between the witnesses' version of events and the expert's description of typical drug transactions. While reaffirming our position "that the operations of narcotics dealers are a proper subject for expert testimony," we cautioned that such testimony should normally be used only for subjects that have esoteric aspects reasonably perceived as beyond the ken of the jury. Cruz, 981 F.2d at 664; Castillo, 924 F.2d at 1232.

This case is different from the situations presented in Cruz and Castillo. Agent Glauner did not give a narrative statement of a typical drug transaction that mirrored the testimony of the Government's fact-witnesses. On the contrary, he provided brief, crisp answers to the Government's questions about several discrete topics: the purity and the weight of the cocaine seized from the defendants, the dosages this cocaine would yield for resale on the street, the wholesale price of the cocaine, the use of beepers by narcotics traffickers, the technique of using codes with beepers to signal the identity of the caller, and the use of cash and nicknames or false names by drug traffickers. In addition, Agent Glauner opined that Hernandez's composition book was an accounting record of drug sales. His substantive testimony constituted only five pages of a trial transcript that spanned 486 pages.

While some of the subjects about which Agent Glauner testified are more esoteric than others, his statements fell within the bounds of acceptable use of expert testimony. Testimony about the weight, purity, dosages, and prices of cocaine clearly relates to knowledge beyond the ken of the average juror. Our circuit has also previously permitted expert testimony regarding the use of beepers and code numbers by narcotics traffickers, United States v. Ginsberg, 758 F.2d 823, 830 (2d Cir.1985), and the accounting books they keep in connection with narcotics transactions, United States v. Diaz, 878 F.2d 608, 616-18 (2d Cir.), cert. denied, 493 U.S. 993, 110 S.Ct. 543, 107 L.Ed.2d 540 (1989). Agent Glauner's information about the purity, weight, and value of the cocaine was relevant to proving that the drugs in this case were intended for distribution, and his testimony about the use of beepers and the accounting book was helpful in understanding the business cards found in defendants' possession and Hernandez's composition book. The admission of Agent Glauner's testimony on these subjects...