U.S. v. Zepeda-Lopez

• Decision Date: 02 March 2007
• Docket Number: No. 05-4246.,05-4246.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus Salvador ZEPEDA-LOPEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

478 F.3d 1213

UNITED STATES of America, Plaintiff-Appellee, v. Jesus Salvador ZEPEDA-LOPEZ, Defendant-Appellant.

No. 05-4246.

United States Court of Appeals, Tenth Circuit.

March 2, 2007.

Submitted on the briefs:^*

Edwin Stanton Wall, Salt Lake City, UT, for Defendant-Appellant.

Stephen J. Sorenson, Acting United States Attorney and Elizabethanne C. Stevens, Assistant United States Attorney, District of Utah, Salt Lake City, UT, for Plaintiff-Appellee.

Before KELLY, ALARCÓN,^** and HENRY, Circuit Judges.

ALARCÓN, Circuit Judge.

Jesus Salvador Zepeda-Lopez appeals from his conviction of conspiracy to distribute 500 grams or more of methamphetamine in violations of 21 U.S.C. § 846. The only issue before us in this appeal is whether the District Court abused its discretion in admitting evidence that connected Mr. Zepeda-Lopez to the conspiracy. The Government and Mr. Zepeda-Lopez's defense counsel stipulated in the presence of the jury that Dean Ramirez, Genaro Galaz-Felix, Carlos Galaz-Felix, Julio Cesar Lopez, Israel Gomez-Astorga, Norma Garcia, Jose Vasquez, Ruben Sanchez, and other individuals were members of a conspiracy to distribute methamphetamine between January 8, 2003 and April 27, 2003.

During his opening statement, Mr. Zepeda-Lopez's counsel stated: "[T]he decision that you're going to have to focus on is whether or not Jesus Salvador Zepeda-Lopez, also known as Cacho, agreed, did knowingly intentionally conspire, confederate and agreed with these other folks, or at least one of them, to participate in this conspiracy. That's the focus of this case. That's the decision that you will be needing [sic] to make."

We affirm because we conclude that the District Court did not err in determining that, as a matter of law, the audio and video tapes containing Mr. Zepeda-Lopez's voice and image were admissible under Rule 901(a) of the Federal Rules of Evidence. We also agree with the District Court that Federal Bureau of Investigation Special Agent John Barrett's ("Agent Barrett") lay opinion that Mr. Zepeda-Lopez was the person whose voice was on the audio tape and his image was depicted on the video tape was admissible as part of the Government's case-in-chief under Rule 701 of the Federal Rules of Evidence to help the jury in determining whether the prosecution met its burden of proving beyond a reasonable doubt that Mr. Zepeda-Lopez was guilty of being a member of the conspiracy.

I

Agent John Barrett was the only prosecution witness called by the prosecution. Because the parties stipulated to the existence of a conspiracy to distribute 500 grams or more of actual methamphetamine, his testimony was offered to prove that Mr. Zepeda-Lopez knowingly participated in it.

Agent Barrett testified that the Government wiretapped telephone conversations between Mr. Zepeda-Lopez, Dean Ramirez, and Jose Aparicio. The District Court admitted the audio tapes of six telephone calls over objection. The taped conversations were in Spanish. Agent Barrett listened to a majority of the conversations in the wiretap monitoring room. He identified Mr. Zepeda-Lopez's voice by using a "baseline call." Agent Barrett explained that a baseline telephone call is one in which one of the parties to the call is identified by name. During one of the telephone conversations, the caller identified himself as "Cacho." Mr. Zepeda-Lopez admitted during his testimony at trial that he was known as "Cacho." He also admitted that his voice was on three of the taped telephone calls, including the baseline call. As to the remaining three telephone audio tapes, Mr. Zepeda-Lopez denied that his voice was on one of them. He did not deny that his voice was on another audio tape. He was not questioned whether his voice was on the remaining audio tape.

Agent Barrett testified that once there was a baseline call, subsequent calls were compared to identify the voices. Agent Barrett stated, "I have limited knowledge of Spanish, and I'm not a native speaker. I do not speak Spanish." Agent Barrett further testified, however, that

[i]t does not matter what the language is. If you hear the same word, no matter what language, you're going to pick up on that specific word and you're going to be able to tell how differently it's said by different people. So I really don't think that the language is necessary to know that, no.

Agent Barrett also testified that he heard Mr. Zepeda-Lopez speak in court three days before the trial began.

Mr. Zepeda-Lopez's attorney objected to the admission of the audio tapes and Agent Barrett's testimony that it was his opinion that Mr. Zepeda-Lopez was a party to the taped telephone calls. The District Court overruled the objection. Instead, it gave the jury the following cautionary instruction:

Special agent Barrett will tell you whom he believes the various speakers are. But you're going to be listening to the tapes and see if one voice is the same on the other. It's entirely up to you to decide whether you agree with him or not, okay? That's your decision.

Part of the Government's evidence, submitted to establish that Mr. Zepeda-Lopez knowingly agreed to participate in committing the offense, involved three events. A telephone call recorded on April 10, 2003, contained a colloquy where an individual stated, "Uh ... Don't forget the poor people. Uh ... I need some lemon popsicles." A second individual replied, "Alright." Agent Barrett testified that Mr. Zepeda-Lopez and Dean Ramirez participated in this phone call. Agent Barrett identified Mr. Zepeda-Lopez as the first speaker, and testified that the term "lemon popsicles" refers to "some type of illegal drug."

In a telephone call taped on April 13, 2003, the parties discussed what to do with the "work" that was located at Mr. Ramirez's auto body shop:

What do we do with that work? What do we do? I'll do that for you. But what do we do? Or what's going on? This guy is very agitated. He's very

. . .

. . .

Where's the work?

Huh?

The work.

It's there.

The errand.

It's in the Shadow.¹

Look.

Huh.

Back in there.

Yeah.

Back in there, near the tires ...

Yeah.

Make a hole there.

Yeah.

You know, those things for the water.

Uh ...

. . .

Look, look, there . . . look. Back behind the shop ...

Yeah.

Look. There . . . there . . . where . . . where the boxes for the switches are . . . for the lights.

Yeah. Here in the shop?

Yes. Uh . . . You know how I have some wide tires over there, at one of the back walls?

Yeah. Yeah.

Up there, there is one of those . . . of water, right?

Yeah. There's a . . . a . . . a . . . rubber kit, yeah. For the water. Yeah.

Okay. Put . . . put the work in there and then . . . and then . . . put it in, where I told you.

In the tires or . . . or in the . . . or in the water?

In the water.

But there are too many!

They'll fit in there.

It won't fit, my friend. There are . . . there are . . . there are like ten (10) or eleven (11) packages.

Then, make . . . make a well there.

But it's day time.

It doesn't matter. There's no one there, Cacho.

But there's people back there.

Mhm. Alright. I'll go over. I'll see what we do.

Alright.

Agent Barrett identified Mr. Zepeda-Lopez as the first speaker and Mr. Ramirez as the second. Agent Barrett testified that the term "work," as used in this conversation, referred to illegal drugs.

The Government introduced a video tape that was recorded on the same day as the April 13, 2003 telephone call by a pole camera positioned outside of Mr. Ramirez's auto body shop. It shows an individual extracting a toolbox out of the trunk of a Dodge Shadow. Agent Barrett testified that the individual depicted in the video tape retrieving the toolbox was Mr. Zepeda-Lopez. The toolbox held the ten to eleven packages of methamphetamine. Later, the video tape shows the toolbox being picked up by Norma Garcia and Santos Ramirez, Dean Ramirez's son.

Agent Barrett identified Mr. Zepeda-Lopez's image on the video tape. The Dodge Shadow is depicted on the video tape as it arrived at the shop. Agent Barrett identified the driver as Carlos Armando Galaz-Felix, and the passenger as Mr. Zepeda-Lopez. During cross-examination, Mr. Zepeda-Lopez's attorney asked Agent Barrett, "[t]his shows Cacho and Topo arriving, correct?" Agent Barrett responded, "It does." During his opening statement, Mr. Zepeda-Lopez's attorney admitted that the person wearing a striped shirt depicted on the video tape was Mr. Zepeda-Lopez.

Mr. Zepeda-Lopez's defense counsel was permitted to conduct a voir dire examination of Agent Barrett to determine whether any law enforcement officers conducted a visual surveillance of the shop at the time in question. Agent Barrett responded that no officer conducted a visual surveillance.

During direct examination, the prosecutor asked Agent Barrett if there were any features which he used to identify the individual on the videotape as Mr. Zepeda-Lopez. He replied: "Yes. Dark pants, dark shoes, dark, short hair. It appears from the—as the video actually runs. Once again, fair skin. Except for the change in the shirt, I'd say it was the defendant." Defense counsel requested permission to conduct an additional voir dire examination. The District Court denied the request. It stated: "Well, I think that—no. But what I'm going to tell the jury is that ultimately is [sic] your decision whether it is or is not."

Mr. Zepeda-Lopez testified in his defense. He denied that he was a knowing participant in the drug conspiracy. He testified that prior to March 2003, he worked in Mexico and "fixed up houses[.]" Mr. Zepeda-Lopez stated that he met Mr. Ramirez in Tijuana, Mexico.

A. I met him on the streets. There's a street where there are many workers asking for work, and that's how I met him.

. . .

Q. And then did he ask you to come work at his house in Utah?

A. Yes. Yes. I met him approximately a year before.

He testified that he originally went to Mr. Ramirez's home in March 2003 because he "was...