United States v. Bahena
| Docket Number | 22-1691 |
| Decision Date | 22 June 2023 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Marcos BAHENA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 19-cr-00744-2 — Gary Feinerman, Judge.
Helene B. Greenwald, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Damon M. Cheronis, Attorney, Ryan J. Levitt, Attorney, Cheronis, Parente & Levitt, Chicago, IL, for Defendant-Appellant.
Before Flaum, St. Eve, and Pryor, Circuit Judges.
Marcos Bahena appeals from a jury conviction for conspiring to possess cocaine with intent to distribute. He argues that multiple errors occurred during the trial—most notably, that the government's expert witness testified beyond the scope of his expertise. He also contends that the government did not present enough evidence to support the conviction. For the reasons discussed below, we affirm.
In March 2019, agents intercepted calls via a wiretap on Jose Bahena's phone. Despite Jose's attempts to obscure his plan by using coded language, the wiretap revealed that he was arranging an illicit transaction. He spoke with a supplier who would be bringing new product into town on a semitruck, as well as with a distributor who would help sell the product upon its arrival. In addition, Jose had frequent calls with his brother, Marcos, the defendant in this case. Marcos's main role was to arrange a clandestine meeting spot where they could pick up the product from the supplier's courier. To that end, Marcos contacted "Juanito," who had access to a private parking space big enough for a semitruck. Juanito agreed to let them use the space if they paid him; the brothers decided to offer him $500. Marcos also informed Juanito of the meeting's purpose so that he would not be surprised and would let them use the spot for future drop-offs.
On the day of the deal, Jose and Marcos exchanged multiple calls settling final logistics. That night, authorities watched Marcos leave his home and head to the parking space. Jose and Juanito joined him. A semitruck then drove up to the parking lot and, after someone opened the gate to the lot, backed in. Before long, the group disbanded. When Marcos called Jose later that night, he relayed that Juanito had been "getting kind of scared" due to the risk he was taking.
The next day, authorities observed Jose meet with the distributor's courier under a bridge. Jose got into the courier's car carrying a plastic bag. Within a couple minutes, he exited the car empty-handed and drove off. The courier left too, but officers promptly pulled him over and found the plastic bag. It contained a powdery substance later identified as cocaine.
Marcos was arrested and charged with possessing cocaine with intent to distribute as well as with conspiring to do so. He went to trial, where the government called numerous agents and officers to testify. Relevant for our purposes, an expert in drug-dealing practices and terminology interpreted some of the wiretap transcripts. Marcos called no witnesses; his main strategy was to cast himself as a pawn in Jose's scheme. The jury found Marcos guilty of the conspiracy but not of the substantive possession offense. Marcos appeals.
On appeal, Bahena mounts a series of attacks on his conviction.1 Primarily, he challenges the scope of the expert witness's testimony. He also requests a mistrial based on two jurors' receipt of unadmitted exhibits and two witnesses' references to his incarceration. These three issues, Bahena contends, cumulatively deprived him of a fair trial. Finally, Bahena argues that the evidence does not support the jury's verdict. We address each subject in turn.
Bahena's first argument concerns the scope of Special Agent German Samaniego's expert testimony. The government called Samaniego to testify about drug-trafficking practices in general and to interpret portions of the wiretap call transcripts. As to the latter, the government asked Samaniego to read aloud entire conversations from the transcripts. Samaniego would then opine as to what the callers discussed over the course of the exchange.
We have often recognized the admissibility of expert testimony to "explain the methods and the jargon and code words used in complex or unfamiliar criminal enterprises." United States v. Gan, 54 F.4th 467, 474 (7th Cir. 2022); see also United States v. York, 572 F.3d 415, 423 (7th Cir. 2009) (). Bahena does not challenge Samaniego's testimony about drug-dealing practices and drug-specific parlance.
Instead, Bahena objects that the government's technique of eliciting testimony about the wiretap transcripts resulted in "wholesale interpretations of uncoded communications that the jury should have been left to interpret on its own." See Gan, 54 F.4th at 474. Bahena did not raise this objection below, so we review for plain error. Id. at 475. That means Bahena must show "(1) an error occurred, (2) the error was plain, (3) it affected [his] substantial rights, and (4) it seriously affected the fairness, integrity, or public reputation of the proceedings." United States v. Thomas, 933 F.3d 685, 690 (7th Cir. 2019).
To Bahena's point, the government's questioning was not precise. For example, at the government's request, Samaniego read aloud the following exchange:
Afterwards, the government directed Samaniego to "walk the jury through [his] interpretation of what that meant." He began, Samaniego then said that Jose told Bahena to ask "somebody named Juan where they can put one of the big ones, referring to a tractor-trailer or semi, so that they can deliver tomorrow, meaning that there's going to be a meeting between the courier and either Jose or Marcos who's going to pick up the drugs there." Samaniego's testimony contains many more exchanges of this variety.
Our recent Gan decision reviewed for plain error similar (albeit, arguably less open-ended) expert testimony interpreting intercepted communications. See Gan, 54 F.4th at 474-75. We held that the defendant did not satisfy plain error's third prong, which asks whether the claimed error affected the defendant's "substantial rights." Id. at 475.3 In other words, the expert testimony did not "affect[ ] the outcome of the district court proceedings." See United States v. Cotton, 535 U.S. 625, 632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). The same is true here.
In Gan, several pieces of evidence "independent" from the challenged testimony went to showing the defendant's guilt for the at-issue charge. Gan, 54 F.4th at 476-77. Here, the government notes that it too introduced evidence besides Samaniego's testimony. Bahena responds that, whereas the expert testimony in Gan mostly concerned a charge on which the defendant had been acquitted, id. at 476, Samaniego's testimony was obviously relevant to the conspiracy conviction. He thus suggests that no amount of "independent" evidence could make up for the prejudice Samaniego's testimony caused.
Accepting that this case is closer than Gan, Bahena overstates the importance of Samaniego's testimony. The government called eleven witnesses other than Samaniego—including numerous agents and officers who investigated the case and provided their eyewitness accounts of the transactions. In all, Samaniego's testimony about the wiretap transcripts takes up approximately twenty-five pages of over 250 total pages of witness testimony. Cf. United States v. Hawkins, 934 F.3d 1251, 1267 (11th Cir. 2019) (). Samaniego was hardly the centerpiece of the government's case.
Even more, and despite Bahena's insistence to the contrary, Samaniego's testimony was not the only source for inferring that Bahena acted with ill intent. The jury had access to the actual wiretap transcripts during deliberations, including ones Samaniego had not interpreted. On these facts, the transcripts, along with the attendant circumstances other witnesses described, allowed the jurors to assess Bahena's motives for themselves. Cf. United States v. Arrellano, 757 F.3d 623, 632-33 (7th Cir. 2014) ().
In short, Samaniego's challenged testimony was not as critical to the conviction as Bahena submits. Like in Gan, other, "independent" pieces of evidence supported the jury's decision. See Gan, 54 F.4th at 476-77.
Further, the district court addressed the risk of prejudice through an instruction to the jury. In Gan, we partially relied on the court's instruction that the jurors "were free to interpret the messages differently than the [expert] did and to discount her testimony." Id. at 477-78. The court's instructions here likewise emphasized that the jurors did "not have to accept [Samaniego's] opinions and testimony" and should evaluate his reliability as they would for "any other witness."
We assume...
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