United States v. Mendiola

• Decision Date: 11 February 2013
• Docket Number: No. 10–1595.,10–1595.
• Citation: 707 F.3d 735
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Carlos MENDIOLA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

707 F.3d 735

UNITED STATES of America, Plaintiff–Appellee,

v.Carlos MENDIOLA, Defendant–Appellant.

No. 10–1595.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 6, 2011.

Decided Feb. 11, 2013.

Thomas D. Shakeshaft (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Beau B. Brindley, Blair Westover (argued), Attorneys, Chicago, IL, for Defendant–Appellant.

Before EASTERBROOK, Chief Judge, and CUDAHY and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

A Spanish-speaking linguist working for the Drug Enforcement Administration (DEA) listened to recordings of Carlos Mendiola's prison telephone conversations prior to testifying before a jury that Mendiola's voice was likely the one on several wiretapped calls in which Mendiola and others planned a large-scale cocaine deal. Mendiola appeals his conviction, arguing that the linguist's testimony constituted impermissible opinion testimony under the Federal Rules of Evidence and violated the Best Evidence Rule to boot. Finding neither of these arguments holds sway, we affirm.

DEA agents suspicious of Alfredo Galindo Villalobos (Galindo) began legally monitoring his telephone conversations in September 2006. Through these conversations, the agents learned that Galindo was trafficking in drugs with someone whose name was Carlos, but who went by the nickname “Pelon.” They also discovered that Galindo and Carlos were expecting a large shipment of cocaine from Mexico to be delivered to them in Chicago. In the late morning of November 1, 2002, agents observed a blue Ford Explorer linked to Galindo in the vicinity of a bus station on the southwest side of Chicago. Agents knew that a bus was scheduled to arrive that morning from a border city in Texas. Galindo, the driver, and his passenger, Mendiola, picked up three men from the bus, two of whom were carrying duffel bags. During a subsequent traffic stop, Galindo and Mendiola each produced Florida driver's licenses with matching addresses. The back seat passengers were later identified as Jose Valadez, Ricardo Mendoza, and Juan Diaz–Casales. After all the occupants of the car consented to a search, the police discovered approximately 5,000 grams of cocaine and three pairs of pants containing hidden pockets filled with cocaine. In order to continue their investigation and ferret out more participants, the officers staged what they refer to as a “rip.” They acted as though they were dirty cops confiscating the cocaine they found for themselves in exchange for releasing the dealers. The plan worked, and three weeks later the agents engaged in a nationwide “takedown” in order to arrest members of the drug trafficking organization, execute warrants, and seize drugs and vehicles, including the blue Ford Explorer and a white Lexus, both of which were found on the street near Mendiola's residence and both of which contained hidden compartments secreting cocaine. After agents gave Mendiola his Miranda warnings, he told officers that the drugs in the car belonged to Galindo and that Galindo had given the drugs to him because there was “some kind of problem with the quality,” and that he had forgotten about them because they had been in the car for some time.

Galindo, Mendoza, and Valadez all pleaded guilty to conspiracy and testified at Mendiola's trial, implicating him as an active participant in the conspiracy to import and distribute multiple kilograms of cocaine. Rubiel Mendiola, the defendant's brother who was also arrested and implicated, and Juan Diaz–Casales are fugitives and have not been found. Each of the other three co-conspirators testified that Mendiola recruited Mendoza and Valadez to smuggle cocaine from Mexico to Chicago, offering them $2,000 per kilogram transported. The details of the three co-conspirators' stories were substantially consistent with each other and with the DEA account. In his brief, Mendiola inventories each inconsistency, and we acknowledge that the testimony of the co-conspirators, like that of many drug traffickers, was less than pristine.

Galindo testified the most extensively about Mendiola's active role in the conspiracy, explaining how Mendiola transported cocaine, collected money, arranged to send narcotics proceeds back to Mexico, picked up couriers who were transporting cocaine from Mexico, and packaged money to be transported back to Mexico. He also detailed Mendiola's part in the November 1 incident in which Mendiola and Galindo retrieved the couriers and drugs at the bus station. The agents involved in the initial seizure at the bus station and the eventual arrest corroborated the testimony of the cooperating defendants. The other evidence presented to the jury included multiple stipulations and physical evidence including the clothing with hidden pockets, drug evidence, surveillance photographs, materials used to package the drugs, a firearm, and the English transcripts of the intercepted Title III wire intercepts involving Mendiola and his co-conspirators.

Those intercepted calls played an important role in the prosecution because they attributed particular acts and responsibilities to Mendiola. Co-conspirator Galindo identified Mendiola's voice on several incriminating recorded calls describing multiple aspects of the conspiracy. Those recordings, with Galindo's identification of Mendiola's voice and nickname, provided evidence of Mendiola's participation in the conspiracy, including his role in packaging the cocaine and money, arranging cover loads to hide money sent back to Mexico, housing the drug couriers, obtaining false identification cards, and possessing firearms. At the end of the seven-day trial, the jury found Mendiola guilty of three counts of narcotics trafficking for which the district court judge sentenced him to 151 months' incarceration.

Fortunately for the prosecution, Mendiola's trial did not rise or fall on Galindo's voice identification alone, for Galindo, like many drug dealers hoping to secure a better deal for themselves, was burdened by significant credibility issues. DEA linguist, Georgina Nido also identified Mendiola as the speaker on those intercepted conversations.¹ Prior to trial, Mendiola stipulated that a set of transcripts would be prepared for use at trial and that the English translations of the Spanish-language calls were authentic.² Two days after the trial began and the day before Galindo was due to testify, Mendiola's counsel informed the government that he would stipulate to the translations of the transcripts and the identities of the speakers for each transcript with the exception of the identity of Mendiola himself. The government then informed defense counsel that it intended to call a DEA linguist to compare a known voice exemplar of the defendant obtained from calls recorded at the Metropolitan Correctional Center in Chicago to the voices in selected calls offered into evidence. Over objection from Mendiola, Nido testified that the voice on four of the calls, “sounded very similar, if not identical” to that on the voice exemplar of Mendiola. App. R. 32–3, p. 699; D. Ct. R. 232, p. 151; Tr. 6/1/09, p. 509.

After the guilty verdict, Mendiola filed post-trial motions requesting acquittal, or in the alternative, a new trial, claiming, in part, that the district court erred in admitting the DEA linguist's voice authentication testimony under Federal Rules of Evidence 701, 702, and 1002. In rejecting the motion for acquittal or a new trial, the district court determined that Nido had sufficient familiarity with Mendiola's voice and that the prosecution did not tender Nido as an expert witness, nor did it need to. Mendiola appeals to this court and we affirm.

We review a district court's evidentiary rulings for abuse of discretion. United States v. Stadfeld, 689 F.3d 705, 712 (7th Cir.2012). Mendiola bandies about the de novo standard, but as our discussion will reveal, this was a simple evidentiary ruling about whether Nido met the requirements for identifying a voice or not. The district court did not have to interpret the Federal Rules of Evidence. This is just one of the ways in which Mendiola's 13,939–word, single-issue brief creates complexities where there are none.³

In fact, there is but a single issue presented on appeal: Whether the district court erred in admitting Nido's voice identification. According to Mendiola, the initial issue we need to address is what exactly Nido was doing when she identified Mendiola as the speaker on the recording. Mendiola argues that Nido was a wolf in sheep's clothing—or rather an expert in a lay witness's clothing—trying to squeak in evidence as a lay witness to avoid the more stringent qualification requirements for expert testimony. SeeFed.R.Evid. 701, 702.

It is Federal Rule of Evidence 901(b), however, which enunciates the amount and quality of evidence sufficient to satisfy the requirement of voice identification. It states that the following is sufficient evidence of voice identification: “an opinion identifying a person's voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.” Id. The accompanying notes state that “aural voice identification is not a subject of expert testimony.” Fed.R.Evid. 901 advisory committee's note to subdivision (b), example (5). This Circuit has long agreed. United States v. Recendiz, 557 F.3d 511, 527 (7th Cir.2009) ( “In light of Rule 901, [the] contention that the court erred in admitting [an agent's voice] identification because he was not qualified as an expert is wholly meritless.”), United States v. Magana, 118 F.3d 1173, 1208 (7th Cir.1997); United States v. Degaglia, 913 F.2d 372, 375–76 (7th Cir.1990). In short, Nido did not need to be vetted as an expert prior to identifying Mendiola's voice.

Mendiola's point seems to be that using a person who is an...