UNITED STATES оf America, Plaintiff-Appellee Cross-Appellant, v. Alfredo CEBALLOS and Alan Martinez-Guzman, Defendants-Appellants Cross-Appellees, and Miguel A. Quintanilla, Leonel Moreno, Jr., Deneise A. Quintanilla, and Abelardo Lalo-Mendoza, Defendants-Appellants.
Nos. 01-3715 to 01-3718, 01-4007, 01-4008, 01-4021, 01-4095
United States Court of Appeals, Seventh Circuit.
Argued June 3, 2002. Decided Aug. 27, 2002.
302 F.3d 679
Beverly K. Corn (argued), Evansville, IN, for Miguel A. Quintanilla.
David Shaw (argued), Evansville, IN, Edward W. Malavenda, Boco Raton, FL, for Leonel Moreno, Jr.
Dennis L. Brinkmeyer (argued), Evansville, IN, for Alfredo Ceballos.
David Shaw (argued), Barbara Coyle Williams, Olsen, Labhart, White & Hambridge, Evansville, IN, for Alan Martinez-Guzman.
David Shaw (argued), Steven L. Bohleber, Evansville, IN, for Abelardo Lalo-Mendoza.
Before BAUER, RIPPLE, and KANNE, Circuit Judges.
KANNE, Circuit Judge.
This is a consolidated appeal of the convictions and sentences of six co-defendants who were tried by a jury and found guilty of drug conspiracy and money laundering pursuant to
In November 1999, DEA agents in southern Indiana began using an informant to make controlled sales of methamphetamine to an individual nicknamed “Cuate.” The DEA monitored several purchases made by Cuate and eventually initiated surveillance on narcotics transactions perpetrated by other individuals, including defendants Martinez-Guzman and Lalo-Mendoza. As the monitored drug transactions in southern Indiana continued, DEA agents began utilizing wiretaps to record conversations between the informant and Cuate. Surveillance of these wiretaps led to an expanded investigation, implicating several more people.
On March 31, 2000, DEA agents in Evansville, Indiana received court authorization to intercept communications over two telephones and one pager belonging to Juan Manuel Mata and Lisa Caudill (the “Indiana wiretaps“). Based on numerous drug-related conversations intercepted by the Indiana wiretaps, the DEA seized one pound of methamphetamine. Subsequently, DEA agents in Dallas, Texas received court authorization to intercept communications over two telephones identified during surveillance of the Indiana wiretaps (the “Texas wiretaps“). The target telephone numbers of the Texas wiretaps belonged to defendants Miguel and Deneise Quintanilla, and during surveillance of these wiretaps, DEA agents intercepted many more drug-related conversations. Based upon evidence of drug-related conversations obtained from the Indiana and Texas wiretaps, the seizure of the methamphetamine, and the testimony of several cooperating witnesses, the government indicted sixteen people on drug conspiracy and money laundering charges. The six defendants proceeded to trial and were convicted as charged in the indictment. The district court then sentenced the defendants as follows:
| Defendant | Charge | Sentence |
|---|---|---|
| Alfredo Ceballos | Drug Conspiracy Money Laundering | 360 months 240 months, concurrent |
| Alan Martinez-Guzman | Drug Conspiracy | 268 months |
| Miguel Angel Quintanilla | Drug Conspiracy Money Laundering | Life 240 months, concurrent |
| Leonel Moreno, Jr. | Drug Conspiracy Money Laundering | 360 months 240 months, concurrent |
| Deneise Ann Quintanilla | Drug Conspiracy | Life |
| Abelardo Lalo-Mendoza | Drug Conspiracy | 204 months |
II. Analysis
A. Joint Claims
1. Motion to Suppress
The defendants’ first argument on appeal is that the district court erred in denying their motion to suppress evidence obtained from surveillance of the Indiana and Texas wiretaps. We will reverse a district court‘s decision to admit evidence obtained from wiretaps only if that decision was an abuse of discretion. See United States v. Adams, 125 F.3d 586, 595 (7th Cir.1997).
The defendants first argue that the district court erred in denying their motion to suppress because, according to the defendants, the government failed to establish the necessity for wire surveillance. Federal law requires each wiretap application to contain a full and complete statement as to one of the following: (1) whether or not other investigative procedures have been tried and failed, (2) why other investigative procedures reasonably appear to be unlikely to succeed if tried, or (3) that other investigative procedures are too dangerous. See
In this case, the government‘s application for the Indiana wiretaps stated that it had tried ordinary investigative procedures such as the use of informants and undercover agents, the use of telephone records and pen registers, and the use of physical surveillance, but that those procedures had been insuffiсient to obtain the evidence necessary to establish the full extent of the drug conspiracy and would continue to be insufficient in the future. In addition, DEA Special Agent Daniel Schmidt‘s affidavit provided factual bases
As the above facts illustrate, the Indiana and Texas applications provided the requisite “full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried ....”
The defendants next contend that the applications for the Indiana and Texas wiretaps contained bad-faith misrepresentations and therefore the district court erred in denying their motion to suppress. Each application to obtain a wiretap must inform the issuing court of all previous aрplications for interception of wire, oral, or electronic communications involving any of the same persons specified in the pending application. See
In the present case, the Indiana and Texas applications failed to disclose that Miguel and Deneise Quintanilla had been the targets of previous wiretap applications in Texas. However, the government agents applying for the wiretaps testified at the suppression hearing that they made three separate searches of the DEA and FBI databases and that each search failed to disclose the prior applications. In addition, Agent Styron testified that subsequent to the Texas application, he performed another search of the DEA and FBI databases and discovered that the prior applications concerning Miguel and Deneise Quintanilla had been under the names “Miquel Quintanilla” and “Deneise Scrimshire” (her maiden name). Upon learning this information, the government filed a motion with the authorizing court in Texas to amend its application for the Texas wiretap, which the court granted. The defendants offered nothing to contradict this evidence showing that the omission was inadvertent other than their conjecture that the agents must have known about the prior applications, and conjecture is insufficient to warrant relief. See United States v. Westmoreland, 240 F.3d 618, 637 (7th Cir.2001). After hearing all of this evidence, the district court found that the government did not act in bad faith and therefore denied the defendants’ motion to suppress. As in Zannino, the agents testified that they had performed searches to determine whether there had been prior applications and that these searches had come up empty. Therefore, we find that the district court did not err in denying the motion to suppress.
Finally, the defendants argue that the government did not obtain the proper approval for authorization of the Texas wiretap. Federal law provides that “any Deputy Assistant Attorney General ... specifically designаted by the Attorney General may authorize an application to a Federal judge of competent jurisdiction for ... an order authorizing or approving the interception of wire or oral communications ....”
2. Expert Testimony
The defendants next contend that the district court improperly admitted the expert testimony of Agents Michael Kress and Styron. Before trial, the gоvernment filed an “Amended Notice Regarding Expert Witnesses,” detailing the agents’ knowledge and experience that qualified them as experts on drug code language. In addition, the Notice outlined the drug code language used during approximately forty intercepted phone conversations about which the agents would testify. In response, the defendants filed a motion in limine, objecting that some of the pronouns outlined in the government‘s Notice
The district court denied the defendants’ motion, and at trial, over twenty recordings of intercepted phone conversations were played before the jury and admitted into evidence.1 After each recording was played, either Agent Kress or Agent Styron testified as an expert witness about the content of the conversations, including interpreting code language used to facilitate the drug conspiracy. For example, the agents testified that some of the defendants’ words such as “tickets” and “cars” were code words for narcotics. Further, the agents testified that words such as “one” and “two” referred to certain quantities of methamphetamine. Finally, the agents testified that in several of the intercepted phone conversations, the defendants used simple pronouns as code language. For instance, during one phone call, Ceballos told Miguel Quintanilla that “it had come up short,” and Agent Kress testified that “it” referred to a shipment of narcotics that Ceballos had received.
The defendants’ first argument on appeal with respect to this testimony is that the district court erred in qualifying Agents Kress and Styron as experts.
In Allen, the district court qualified a DEA agent as an expert in drug trafficking primarily because the agent had received education and training in the field of narcotics trafficking. See 269 F.3d at 846. Specifically, the agent had worked for the DEA for thirteen years and had investigated hundreds of narcotics cases. See id. We then held that the district court properly qualified the agent as an expert, noting that the advisory committee notes to
In this case, Agent Kress had worked for the DEA for аpproximately ten years and had investigated numerous drug-trafficking cases involving organizations from six Latin American countries. In addition, during these drug investigations, he reviewed in excess of 50,000 intercepted telephone conversations involving drug traffickers and interpreted the drug code language therein. Agent Styron had worked for the DEA for approximately thirteen years, had participated in over fifty investigations, and had testified as an expert witness on drug code language in several drug-trafficking cases. Thus, like in Allen, the district court properly qualified the agents as experts and did not
The defendants argue that Agents Kress and Styron did not qualify as experts because the agents based their testimony on English translations of Spanish conversations and neither spoke fluent Spanish. We can find no legal authority for the proposition that the agents’ lack of fluency in the Spanish language should prohibit them from interpreting drug code language obtained from English translations of Spanish conversations. Instead, this court and other circuits havе previously permitted agents to rely upon English translations to interpret drug code language, see, e.g., United States v. Hughes, 970 F.2d 227, 236 (7th Cir.1992); United States v. Nersesian, 824 F.2d 1294, 1307 (2d Cir.1987), and we see no reason to forbid this practice in the present case.
Next, the defendants assert that the district court improperly allowed Agent Kress and Agent Styron to testify regarding the defendants’ use of simple pronouns during the intercepted phone conversations. We have previously held that expert testimony concerning narcotics code words is permissible because this language is not within the common understanding of most jurors. See United States v. Rollins, 862 F.2d 1282, 1292 (7th Cir.1988). The government responds, therefore, that the pronouns that the agents interpreted constituted drug code language because of their ambiguity and were the proper subjects of expert testimony. For example, during one intercepted conversation that was played for the jury, Ceballos called Miguel Quintanilla, and the following conversation took place:
Ceballos: Oh, man, one more thing ... that guy owes me, man.
Quintanilla: How‘s that?
Ceballos: Yeah, man. I don‘t know hоw, man, there was some missing from both.
Quintanilla: But I, I prepared them here, man.
Ceballos: It really bugs me, the same as the one before, you know, like the other time. I told you it had come up short, and I didn‘t deduct anything from you, man. The other time there was some missing, man.
Quintanilla: Let‘s see if I can replace some of what was missing ... but, no man, I checked them ... and they don‘t have a way of getting into it.
Ceballos: Yeah. No, no and if not ... nah, what do they want it for?
Quintanilla: I‘m going to double check it this time, man.
Ceballos: Yeah, if you give me ... so I don‘t deduct any more. Add something, man.
Quintanilla: Alright. Anyway, I‘ll give you some back with the other one, man.
Agent Kress testified that in his opinion, Ceballos’ use of the word “both” in his statement, “there was some missing from both” meant that Ceballos was expecting a two-pound shipment of methamphetamine, and that he had received less than this amount. Agent Kress went on to testify that the use of “it” and “them” throughout the rest of the conversation referred to shipments of methamphetamine that Quintanilla had prepared and packaged in Texas and had sent to Ceballos in Indiana. He based this opinion, in part, on the fact that thеre were no other nouns to which the pronouns “it” and “them” referred and therefore the pronouns were ambiguous.
In Rollins, a DEA agent testified about his interpretation of intercepted phone conversations between two alleged drug dealers. See id. In several instances, the drug dealers used the word “it” and other words, which the agent testified referred to cocaine. See id. We held that the use of the word “it” constituted drug code language in that case and as such was the proper subject of expert testimony. See
3. Apprendi
The defendants’ next argument is that their sentences should be reversed because
B. Deneise Quintanilla
1. Admission of Evidence
Deneise‘s first argument is that the district court erred in admitting the transcripts of three intercepted phone conversations—Exhibits 154, 194, and 195. The district court admitted Exhibit 154 as an admission of a party-opponent under
Deneise does not quarrel with the district court‘s findings that Exhibits 154, 194, and 195 complied with the requirements for admissibility under the rules of evidence. Rather, she argues that these exhibits concerned a different conspiracy than the one charged in the indictment and therefore contends that she was prejudiced by their admission because evidence of one conspiracy cannot be admitted as evidence of a separate conspiracy. In order to succeed on this claim, Deneise must show that the evidence presented at trial was insufficient to support a finding of a single conspiracy and that she was prejudiced by the exhibits’ admission. See United States v. Jones, 275 F.3d 648, 651 (7th Cir.2001). To determine whether a single conspiracy or multiple conspiracies existed, we look at the nature and purpose of the defendants’ agreement. United States v. Mazzanti, 888 F.2d 1165, 1174 (7th Cir.1989). Multiple conspiracies exist when there are separate agreements to effectuate distinct purposes. See United States v. Thornton, 197 F.3d 241, 254 (7th Cir.1999). A single conspiracy exists, on the other hand, when the evidence, viewed in the light most favorable to the government, establishes that the co-conspirators joined to effectuate a common design or purpose. See Mazzanti, 888 F.2d at 1174; see also Thornton, 197 F.3d at 254 (finding single conspiracy where all of defendant‘s activities with his co-conspirators had “one
In Jones, the indictment charged a single conspiracy, and much of the government‘s evidence at trial concerned the defendant‘s activities with three individuals, whereby the conspirators would travel to Chicago, purchase crack, and return to Springfield to distribute the crack there. See 275 F.3d at 650-53. The government also introduced the testimony of Tonya Gephardt, who testified that she traveled with the defendant to Chicago, purchased crack, and returned to Springfield to sell the crack. See id. at 650. On appeal, the defendant argued that his initial three co-conspirators had been arrested before the activities about which Gephardt had testified and therefore there were two separate conspiraсies—one prior to the co-conspirators’ arrest and one after their arrest that involved Gephardt. See id. at 651-52. The defendant asserted that the indictment only charged the former conspiracy and therefore Gephardt‘s testimony was inadmissible. See id. We noted that the indictment against the defendant alleged that he conspired with “others” to distribute crack and held that a single conspiracy existed because the activity about which Gephardt testified had the same design and purpose as the defendant‘s activities with his initial three co-conspirators. See id. at 652-53. Therefore, we held that the district court did not err in admitting Gephardt‘s testimony. See id. at 653.
In the present case, Deneise argues that the indictment charged a conspiracy to distribute methamphetamine in southern Indiana and that the disputed exhibits, which regarded the ultimate distribution of methamphetamine in Texas, concerned a separate conspiracy and were therefore inadmissible. However, the indictment shows that the government chаrged Deneise with a conspiracy to distribute methamphetamine “in the Southern District of Indiana, Evansville Division, and elsewhere.” (Emphasis added). To that end, the evidence at trial, viewed in the light most favorable to the government, established Deneise‘s involvement in the following conspiracy: Miguel obtained methamphetamine from an individual named Leonel Moreno and along with Deneise packaged the methamphetamine and sold it to people who would either distribute it on the street level in Texas or would take it to Indiana for further distribution. The Quintanillas would use couriers in Texas to take the methamphetamine to Ceballos and others in Indiana. For example, Terri Nichols testified that on one occasion, she went to the Quintanillas‘s house, saw Deneise packing methamphetamine in plastic wrap, purchased that methamphetamine from the Quintanillas, and took it to Indiana for further distribution. The disputed exhibits, on the other hand, concerned the part of the conspiracy whereby the Quintanillas would distributе methamphetamine in Texas. Because the activities described in Exhibits 154, 194, and 195 pertain to Deneise‘s involvement in the distribution of methamphetamine obtained from Moreno, they concern the same conspiracy that was charged in the indictment and that was shown by the government‘s other evidence at trial. As in Jones, we hold that there was only a single conspiracy in this case and that the district court did not err in admitting Exhibits 154, 194, and 195.2
2. Sentence Enhancement
Deneise next contends that the government‘s
No person ... shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.
In this case, the government filed its
As an initial matter, some circuits, including ours, have previously called
On the other hand, all of the courts that have offered analysis on the issue have held that
We must, of course, address subject-matter jurisdiction in every case. Given the existing circuit split on the issue and our lack of analysis in previous decisions, we believe it appropriate to reexamine our position that
We start by noting that jurisdictional problems generally fall into two broad categories. See Lawuary, 211 F.3d at 378 (Easterbrook, J., concurring). The first concerns the constitutional or statutory limits placed upon the adjudicatory authority of federal district courts. See id. In this case, the district court clearly had subject-matter jurisdiction over Deneise‘s prosecution pursuant to
The second category of jurisdictional problems “includes rules that cannot be waived by the parties, and which are loosely called ‘jurisdictional’ because they have this feature in common with the genuine jurisdictional limits.” Lawuary, 211 F.3d at 379 (Easterbrook, J., concurring). However, that
This second category of jurisdictional problems reflects the “chameleon-like quality of the term ‘jurisdiction‘” and the fаct that judges and legislators sometimes use the term jurisdiction to erroneously refer to a court‘s authority to issue a specific type of remedy, rather than to the court‘s subject-matter jurisdiction. Prou, 199 F.3d at 45. For example, in Steel Co., the Supreme Court held that
The Supreme Court‘s recent opinion in United States v. Cotton, 535 U.S. 625 (2002) is also illustrative. There, the Court overruled Ex Parte Bain, 121 U.S. 1 (1887), which had held that defects in the indictment were jurisdictional. See Cotton, 535 U.S. at 631. The Cotton Court stated that the desire to correct constitutional errors “led to a somewhat expansive notion of jurisdiction,” and that Bain‘s concept of jurisdiction was not what that term means today—“the courts’ statutory or constitutional power to adjudicate the case.” Id. at 629-30 (quotations omitted) (emphasis added). Therefore, the Court overruled Bain and held that defects in the indictment do not deprive a court of jurisdiction. See id. at 631.
Section
We now turn to the question of whether the government‘s service of its information satisfied
Moreover, the government advised Deneise‘s counsel before trial that it would seek an enhanced sentence due to Deneise‘s prior convictions if she rejected its plea offer. Further, the government identified the specific convictions upon which it would rely for the enhancement at that same time. After Deneise rejected the plea three days before trial, the government filed its
C. Alfredo Ceballos
Before trial, Ceballos moved to suppress his oral confession, arguing that it was not voluntary. At the suppression hearing, the following facts were adduced: DEA agents arrested Ceballos and his wife Lisa Ceballos at their home pursuant to a search warrant. Major Dennis Holt of the Vincennes Police Department and DEA Task Force then took Ceballos into the bedroom, while his wife and the remaining agents stayed in the living room. Major Holt read Ceballos his Miranda rights in English, and Ceballos indicated that he understood and could speak English and that he wanted to give a statement.6 Ma-
Ceballos moved to suppress his two statements, arguing that they were not voluntary, but the district court denied Ceballos‘s motion and admitted his statements into evidence. We review the voluntariness of a confession de novo, and in doing so will accept the district court‘s findings of fact absent clear error. See United States v. Sablotny, 21 F.3d 747, 751-52 (7th Cir.1994). A confession is voluntary if in light of the totality of the circumstances, it was “not secured through psychological and physical intimidation but rather was the product of a rational intellect and a free will.” Id. at 750 (quotations omitted). We have previously identified sеveral factors that are relevant to determining voluntariness of a confession, including but not limited to whether the defendant was read his Miranda rights, the defendant‘s age, the duration and nature of the questioning, and whether the defendant was punished physically. See id.
In this case, the totality of the circumstances militates in favor of the conclusion that Ceballos’ confession was voluntary. He was read his Miranda rights three times, in both English and Spanish. In each instance, he indicated that he understood his rights but still wished to give a statement. In addition, he was twenty-four years old and there is no evidence that he had a diminished mental capacity. See Weidner v. Thieret, 932 F.2d 626, 627-28 (7th Cir.1991) (finding that a confession made by a seventeen-year-old defendant who claimed to suffer brain damage due to drug abuse was voluntary). Further, the duration of his questioning was relatively short (two forty-five-minute periods of questioning). See United States v. Cichon, 48 F.3d 269, 271, 276 (7th Cir.1995) (holding confession voluntary where defendant was questioned for two hours). Finally, there was no evidence that he was punished physically.
Further, “coercive police аctivity is a necessary predicate to the finding that a confession is not voluntary.” United States v. Dillon, 150 F.3d 754, 757 (7th Cir.1998). To that end, Ceballos focuses on Major Holt‘s false comment that Miguel Quintanilla had already implicated Ceballos, which he argues overbore his will and constituted impermissible coercion.7 However, we allow “considerable latitude in playing on the guilt and fears of the person interrogated in order to extract a confession that he will shortly regret having given.” Johnson v. Trigg, 28 F.3d 639, 641 (7th Cir.1994). In fact, we have held that
D. Miguel Quintanilla
1. Motion to Dismiss
On the day trial commenced, Miguel filed a motion to dismiss due to an alleged Sixth Amendment violation based on the performance of his initial attorney, Scott Danks. The district court ultimately denied Miguel‘s motion to dismiss, which we review for an abuse of discretion. See United States v. Alanis, 265 F.3d 576, 584 (7th Cir.2001). Danks was appointed as Miguel‘s counsel on September 26, 2000, and continued to represent him until his motion to withdraw was granted on April 12, 2001. During his representation, Danks assisted Miguel in waiving his initial appearance and entering a plea of not guilty. Otherwise, however, Danks did not communicate with his client nor file any motions on his behalf. The same day that the district court granted Danks‘s motion to withdraw, it also appointed Beverley Corn to represent Miguel. Corn reprеsented Miguel throughout the remainder of the pre-trial proceedings, during trial, and continues to represent him on appeal. Corn filed numerous motions on his behalf, including several motions in limine to exclude the expert testimony of Agents Kress and Styron, a motion in limine to exclude one intercepted phone conversation with Miguel‘s daughter, motions to suppress the evidence obtained from the Indiana and Texas wiretaps, and the motion to dismiss on the day of trial.8 Further, at trial, Corn cross-examined many government witnesses and made closing arguments.
For Miguel to prevail on his claim, he must establish that Danks‘s performance was deficient and that the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687 (1984).9 A failure to
In United States v. Goudy, 792 F.2d 664, 671-72 (7th Cir.1986), the defendant claimed that his counsel was ineffective for, among other things, failing to communicate with him for two and one-half months preceding trial and for failing to file any pre-trial motions. We held that the defendant‘s claim failed because he did not “suggest in any way how the outcome of the trial would have differed if some unspecified motions had been filed or if his attorney had met with him some unspecified number of times before trial.” Id. at 672; see also United States v. Olson, 846 F.2d 1103, 1108 (7th Cir.1988) (rejecting defendant‘s ineffective assistance of counsel claim based on attorney‘s inadequate pre-trial contact because defendant “failed to affirmatively show prejudice“). In this case, Miguel has not suggested that Danks‘s performance prejudiced him, and thus, as in Goudy and Olson, his claim must fail.
2. Enhanced Sentence
At the time of Miguel‘s conviction, he had three prior felony drug convictions. Before trial, the government filed a timely information pursuant to
E. Cross-Appeal
The government cross-appeals the district court‘s refusal to enhance Ceballos‘s and Martinez-Guzman‘s sentences pursuant to
The district court, however, found that
We have never ruled on the precise issue at hand—whether the government must prove that the defendant intended to use the minor to shield himself from prosecution in order to invoke
Based on the plain language and purpose of
III. Conclusion
For the foregoing reasons, we AFFIRM the convictions and sentences of all of the defendants, except for the sentences of Ceballos and Martinez-Guzman, which are VACATED and REMANDED for re-sentencing consistent with this opinion.