United States v. Gaytan, 2011 U.S. App. LEXIS 16630

Gaytan was indicted on two counts of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1).
Two controlled purchases were arranged by the FBI with confidential informant Worthen; Gaytan sold crack cocaine in each transaction.
The FBI recorded audio and some video of the transactions; surveillance did not capture the hand-to-hand transfer and Worthen did not testify.
Worthen was searched and given buy money before each purchase; the money and drugs were not seen changing hands on video.
The government relied on audio recordings, agent testimony, and expert testimony interpreting coded drug language to prove guilt.
Gaytan challenged sufficiency of evidence, Confrontation Clause applicability to two statements, Rule 403 prejudice, and an expert-qualification issue related to drug jargon.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of the evidence	Government argues recordings and circumstantial evidence prove guilt beyond a reasonable doubt.	Worthen's testimony was necessary to link transfers; absence weakens proof.	Evidence sufficient; circumstantial proof via recordings and context prove guilt.
Confrontation Clause and testimonial statements	Two Worthen statements were testimonial and should have been excluded if offered for truth.	Statements are testimonial but offered only to provide context for Gaytan's responses, not for truth.	No Confrontation Clause violation; statements used for context, not to prove truth.
Rule 403 prejudice	Agents’ testimony about recordings unfairly prejudicial because Worthen could have testified.	Old Chief-like prejudice; less prejudicial alternative available.	No reversible Rule 403 error; testimony not unfairly prejudicial given record and cross-examination.
Agent Moreland's drug-jargon testimony	Moreland testified as expert on jargon without proper qualification.	Testimony appears to be expert opinion; failure to qualify could be error.	Plain-error analysis shows any error was harmless; conviction stands.

United States v. Tavarez, 626 F.3d 902 (7th Cir. 2010) (insufficient witness testimony can be overcome by strong circumstantial evidence)
United States v. York, 572 F.3d 415 (7th Cir. 2009) (drug-code interpretation and context testimony can be admitted with caution)
United States v. Tolliver, 454 F.3d 660 (7th Cir. 2006) (informant statements used to contextualize defendant’s statements)
United States v. Nettles, 476 F.3d 508 (7th Cir. 2007) (Confrontation Clause limits on informant statements to avoid putting words in mouth)
United States v. Barrow, 310 F.3d 1007 (7th Cir. 2002) (knowledge of drug identity not element of § 841(a))
United States v. Hendrix, 482 F.3d 962 (7th Cir. 2007) (sufficiency and evidentiary considerations in controlled-buy cases)