Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 85 CR 27 (27)--Allen Sharp, Judge.
Posner, Coffey, and Flaum, Circuit Judges.
Felipe Vega appeals his convictions and sentences on charges of conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and of utilization of a communications facility in committing such an offense in violation of 21 U.S.C. § 843(b). We affirm.
Felipe Vega was originally charged in a 61-count indictment charging 32 defendants with various drug conspiracy violations. This was the same indictment involved in our decision in United States v. Zambrana, 841 F.2d 1320 (7th Cir. 1988). As we detail, infra, Vega's case was severed, on his own motion, from those of the other defendants named in the Zambrana indictment.
Vega's indictment stemmed from a United States Drug Enforcement Agency (DEA) investigation, coordinated with local law enforcement agencies, of drug trafficking carried on by the Zambrana family and others in the northwest Indiana area. As part of the investigation a court-authorized wiretap was placed on the telephone at the residence of Jesus Zambrana in Gary, Indiana, from March to July, 1985. On the basis of the wiretap it was learned that the Zambranas were carrying on a sophisticated drug trafficking operation and were to receive a cocaine shipment in Gary, Indiana, on April 25, 1985. This shipment originated with an Antonio Dominguez in Miami, Florida. The cocaine was to be transported to the Zambranas by automobile.
On the evening of April 25, 1985, the DEA established surveillance at various points on highway routes leading into Gary, Indiana. The purpose of this surveillance was to intercept a vehicle transporting suspected drugs from Florida to Gary, Indiana. As an aid to the surveillance procedure, DEA Agents Michael Ehrsam and Elaine Harris prepared a list containing names of possible drivers of the vehicles as well as descriptions of the cars.
As part of this surveillance operation, DEA Agent Ehrsam and four Lake County, Indiana, Sheriff's Officers stationed themselves on the northbound lanes of Interstate 65 at the intersection of State Route 231 in the Crown Point, Indiana, area. This location was roughly 15 miles from the Zambrana house. While on surveillance, Agent Ehrsam and Lake County, Indiana, Sheriff's Department Patrolman Timothy Downs observed a rose-colored 1984 Oldsmobile driving in an erratic manner. Ehrsam and Downs followed the vehicle for three or four miles and then directed the driver to pull over. Officer Downs requested the driver's license and registration of the vehicle's operator. The driver's name was Ernest Lonzo, an individual whose name appeared on the DEA's list of possible drug transfer drivers. Officer Downs then ran a check on Ernest Lonzo's driver's license as well as the involved vehicle's registration. Downs discovered that Lonzo was operating a vehicle with a suspended driver's license. Lonzo was arrested and transported to the Lake County Sheriff's Department, together with his passenger, Charles Cole.
Lonzo's automobile was impounded at the Lake County Sheriff's Garage in Crown Point, Indiana, and was thereafter searched pursuant to a search warrant issued on April 25, 1985. Found in the automobile were two brown plastic garbage bags and two packages bound with grey furnace tape. The two garbage bags each contained two packages bound with grey furnace tape. All six of the packages bound with grey furnace tape contained a white powdery substance. The packages were sent to the DEA lab where they were tested and found to contain 5,847.01 grams of 92 percent pure cocaine.*fn1
As in many drug conspiracy cases, the evidence linking Felipe Vega with the claimed Zambrana drug conspiracy was circumstantial. The evidence included recordings of telephone calls Vega and his wife made to Jesus Zambrana's residence between March 21, 1985 and April 30, 1985, and between June 14, 1985 and July 2, 1985. Also significant were inferences drawn from the correlation between the dates and timing of these telephone calls and suspected drug deliveries to the Zambrana residence.
The identification of the participants in the recorded telephone conversations was questioned at trial. In the eight tapes involving Felipe Vega, his voice was identified by St. John, Indiana, Police Detective Bernard J. Johnsen, who testified on both direct and cross-examination that it was his opinion that Vega's voice was recorded on eight tapes out of the nine tapes submitted to him for identification.*fn2 As indicated previously, pursuant to this procedure Detective Johnsen identified Vega's voice on eight of the tapes given him, but stated that Vega's voice was not on the other tape presented for identification. On cross-examination Officer Johnsen identified Vega in the following fashion:
"MR. BEMIS (Vega's Attorney): Q: When you listened to that tape and drew your opinion as to -- that it was Mr. Vega talking on the tape, could you -- could you say for certainty that that could be nobody else in the world other than Mr. Vega?
JOHNSEN: A: My opinion is that that was Mr. Vega.
Q: And it is your opinion that was nobody else?
A: No. I'm sure the voice I heard was Felipe Vega."
Officer Johnsen's identification of Vega's voice on the tapes was based upon a comparison of Vega's recorded voice with Johnsen's recollection of Vega's voice during a two-hour conversation he had with Vega approximately two years prior to trial. Johnsen's conversation with Vega at that time had been in English, although he had also had an opportunity to listen to Vega speaking in Spanish with another agent during the same two-hour conversation. Vega attempted to challenge Johnsen's lay identification of Vega's voice on the basis of Officer Johnsen's inability to speak Spanish and the fact that Johnsen had not previously spoken with Vega on the telephone. It is interesting to note that the cross-examination of Johnsen did not focus on his observation of the specific aspects of Vega's voice.*fn3
Most of the telephone calls between Felipe Vega and the drug headquarters at the Zambrana residence were in Spanish. Much of the conversation was of an informal nature, with the parties advisedly not using words referring to drugs. The government, however, focuses on certain code words which it contends are known and accepted in the drug world.
Tom Lovely, an active and convicted member of the same Zambrana drug conspiracy, testified that Jay Zambrana instructed Lovely to use "code words" when speaking about drugs on the telephone. Lovely said he used whatever word came to mind, such as " stuff " or " shit." Although Lovely gave " chicken " as an example of a possible code word, he stated that he himself had never used that particular word for drugs.
In his conversations with the Zambranas, Vega frequently used words such as " chickens," "roosters," or " it," which the government contends represented code words commonly used in the drug world. It should be noted that while Tom Lovely, when questioned, did testify that the Zambranas had chickens on their farm, the record is devoid of evidence either that the Zambranas or Vega bartered, traded or dealt in chicken sales at any time.
The use of "code words" like "chicken" in Vega's conversation with the Zambranas can be noted in the August 11, 1985 conversation between Felipe Vega and Jay Zambrana, which is the basis of a use of a communications facility charge against Vega:
"FELIPE: Listen. For . . . For the four chickens, how much are you going to charge me for each chicken ?
JAY: Well, the same as always. You know what it is.
FELIPE: Oh, four seven and something.
FELIPE: Okay. Then get one chicken for me.
JAY: One or two or three?
FELIPE: No, one chicken for . . . for, you know, to. . . .
JAY: Okay, that's fine. That's fine.
FELIPE: It's for another person (unintelligible) that chicken, man.
This conversation followed a March 21 conversation between Vega and another person at the Zambrana residence. In this conversation Felipe Vega asked if Jesus Zambrana could get him four " chickens." This conversation also followed a March 29 taped conversation in which Vega spoke at length with someone at the Zambrana residence concerning exchanges of a " chicken " and " roosters." Subsequently, on April 30, 1985, Felipe Vega had another conversation with a person at the Zambrana residence. In this conversation Vega stated that " it " was good. Later Vega and this person spoke about "the price" Jesus Zambrana was asking. Each of these conversations took place in close and near proximity to the time of the law enforcement officers' April 25 interception of the Zambranas' drug delivery.
The next conversation between Vega and the Zambrana household occurred on June 14, 1985, when Vega spoke with Jesus Zambrana. Zambrana said that they were " still waiting." In light of the drug shipment the government contends was en route to Zambrana, referred to in the June 23, 1985, conversation between known drug conspirators Antonio Dominguez and Jesus Zambrana, the jury could very logically have inferred that Zambrana and Vega were "still waiting" with bated breath for the expected drug shipment. After speaking about work-related matters, Vega and Zambrana ended their conversation by agreeing that Vega would call the next day. On June 18, 1985, Jesus Zambrana told Vega that they were " still waiting for (unintelligible) of the passage " and that he would " let [Vega] know when." Later on in that conversation the following exchange took place:
"FELIPE: Today, more or less. Will it arrive ?
JESUS: Well, I can't tell you for sure, because I would be lying, you know, it's better to be sure one way or the other. If the people are going to get here today or tomorrow or when.
FELIPE: Ah, ha, at what time?
JESUS: Yes, ok. I will let you know. I will let you know as soon as I hear when they will get here."
(Emphasis added). Felipe Vega called Jesus Zambrana again on June 21 and was told that they were " waiting." On June 28, 1985, Felipe Vega again called Jesus Zambrana inquiring when Zambrana was going to " take care " of him. Zambrana replied that there was " nothing yet," they were " still waiting " and that someone had told him " two or three days." Felipe Vega then spoke to Zambrana about a trip to Puerto Rico he was taking and the impending wedding of his daughter. This entire sequence of taped conversations clearly coincides with the expected drug shipment described in the June 23, 1985, taped conversation between Jesus Zambrana and Dominguez.
Finally, on July 2, 1985, a woman identifying herself as Felipe Vega's wife called Jesus Zambrana and during her conversation asked " nothing yet ?" Zambrana answered that " the associate is leaving in the evening." The woman then mentioned that Felipe Vega was in Puerto Rico and asked whether Zambrana had " anything." A period of inquiry about each other's identity followed. When the woman made clear she was Felipe Vega's wife, Zambrana was evidently satisfied and stated she could " come by." However, he added that if she was going to come she should let Zambrana know so he could have " everything ready." Again, in light of the continued inquiry concerning arrival times in a conversation following earlier taped conversations of the same nature, this discussion appears consistent with the arrival of the awaited drug shipment to the Zambranas in this time frame. The woman said I need four " with the wedding." These words appear to be the type of "nonsensical language" which is employed as code language for illegal drugs. See United States v. Ramirez, 796 F.2d 212, 215 (7th Cir. 1986) ("Witness at the trial explained that the nonsensical language employed by the conversants was a code for illegal drugs"). Zambrana indicated assent and asked if the woman was going to " send the guy now." She said she would send him to Zambrana's house later that night, to which Zambrana agreed.
II. PROCEDURAL BACKGROUND
A grand jury handed down an indictment charging Felipe Vega with conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 and of utilization of a communications facility in committing the conspiracy offense in violation of 21 U.S.C. § 843(b), as part of the 61-count indictment of 32 defendants in U.S. v. Zambrana. Vega entered his initial appearance on July 30, 1985. On August 27, 1985, Vega filed a motion for severance alleging prejudicial joinder. Vega's severance motion was one of many filed by codefendants following the indictment.
The case was assigned to then District Judge Michael Kanne. On October 7, 1985, Judge Kanne entered an order severing Jesus Zambrana's case from that of his codefendants and continuing trials in all the cases. Jesus Zambrana's trial was set for October 21, 1985, and the trial of the remaining defendants was set for November 4, 1985. The order also continued the involved trials to further the ends of justice pursuant to 18 U.S.C. § 3161 (h)(8)(A). The order noted that a 61 count indictment charging all 32 defendants was presently filed in a single case, with a number of attorneys involved. The court further observed that this was "a case of extensive proportions presenting extremely complex problems in assuring a fair trial." The court determined that the most appropriate course for it to take would be to "acknowledg[e] the existence of a judicial emergency under 18 U.S.C. § 3161(h)(8)" and utilize severance procedures. Under this method the court would "initially proceed with one trial involving a single defendant and, in accordance with the declared judicial emergency, continue the trials of remaining defendants subject to severance where appropriate." The court further noted that
"because of the unusual and complex nature of this case it is unreasonable to expect trial of all defendants to take place within the time limits established by 18 U.S.C. § 3161. Accordingly, the court finds the ends of justice will be served by the granting of continuances and severance in this cause. The granting of continuances clearly outweigh the interests of the public and the defendants in a speedy trial."
The court went on to observe that the complexity of the case, the jury's capacity to follow instructions and the jury's ability to apply evidence to the proper defendant all ...