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United States v. Zambrana

decided: December 15, 1988.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOHN ZAMBRANA, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 85 CR 27--Michael S. Kanne, Judge.

Author: Eschbach

ESCHBACH, Senior Circuit Judge.

This is a direct criminal appeal from a jury conviction, pursuant to a sixty-one-count indictment. The defendant-appellant, John Zambrana, challenges his convictions on one count of conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. § 846, one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and three counts of using a communication device to facilitate a violation of the Controlled Substances Act in violation of 21 U.S.C. § 843(b). Zambrana was sentenced to five years in prison, followed by a special parole term of five years, and ordered to pay a special assessment of $250 under the provisions of the Crime Control and Fine Enforcement Act of 1984, 18 U.S.C. § 1405. Appellant now raises three grounds for reversal on appeal, including his assertion that the government selected only certain drug-related conversations from court-authorized interceptions of telephone calls to introduce into evidence. He also contends that it was improper for the trial court to admit wiretapped conversations into evidence because they were inaccurately translated from Spanish into English. Finally, Zambrana argues that the jury did not give sufficient weight to the testimony of co-conspirator, Andre Sanchez. We affirm the convictions.

I.

John Zambrana was charged, along with thirty-one other defendants, in a sixty-one-count indictment for their involvement in a drug trafficking operation. This was the same indictment involved in our decisions in United States v. Zambrana, 841 F.2d 1320 (7th Cir. 1988), and United States v. Vega, 860 F.2d 779 (7th Cir. 1988). John Zambrana's case was severed, on his own motion, from those of the other defendants named in the indictment.

Zambrana's indictment stemmed from a United States Drug Enforcement Agency ("DEA") investigation, coordinated with local law enforcement agencies, of a cocaine-distribution network in northern Indiana. As part of the investigation, a court-authorized wiretap was placed on the telephone of Jesus Zambrana, the defendant's father, at his residence in Gary, Indiana, from March to July, 1985.*fn1 Pursuant to the wiretap, government agents were cautioned to minimize the interception of conversations that were not within the scope of the criminal investigation. As a result of conversations heard on the wiretap, the DEA learned that the Zambranas were conducting a sophisticated drug trafficking operation and were to receive a shipment of cocaine on April 25, 1985.

On the evening of April 25, 1985, the DEA, along with East Chicago and Lake County, Indiana police officers, established surveillance at various points on Interstate 65. The purpose of this surveillance was to intercept a vehicle transporting drugs from Miami, Florida to Gary, Indiana. To help in the surveillance procedure, DEA agents prepared a list of individuals suspected of being involved in the transportation of narcotics between Florida and Indiana and descriptions of their vehicles.

During this surveillance, the officers observed a 1984 rose-colored Oldsmobile Delta 88 being driven in an erratic manner. The officers followed the automobile for three or four miles and then directed the driver to pull over. Officer Downs asked the driver for his license and registration. The driver's name was Ernest Lonzo, an individual whose name appeared on the DEA's list of possible drug transfer drivers. Alter using Lonzo's driver's license for an identification check, Officer Downs arrested Lonzo for driving with a suspended license and took him and his passenger, Charles Cole, to the Lake County, Indiana, jail. Cole was not arrested and was released shortly thereafter.

After Lonzo's arrest, East Chicago Police Officer Fernando Villicana drove the car to the Lake County Sheriff's Garage in Crown Point, Indiana, where it was impounded. On April 26, 1988, DEA Special Agent Elaine Harris obtained a search warrant from a United States Magistrate in Hammond, Indiana authorizing a search of the automobile. During a search of the car, police officers found six packages containing a white powdery substance and approximately $960 stored in a secret compartment. The officers removed the packages from the car and took them to the DEA laboratory in Chicago, Illinois, where a chemist determined that the six packages contained 5,847.01 grams of 92% pure cocaine. The estimated street value of this cocaine was approximately $3,000,000.

As part of a large family-run distribution organization, Zambrana was responsible for taking drug orders from customers and then relaying the messages to his brother, Jay. He also assisted his brother in the distribution of cocaine in certain instances. As in many conspiracy cases, the evidence against the defendant was largely circumstantial. The court-authorized wiretap on Jesus Zambrana's telephone produced the bulk of the evidence that the government introduced to link John Zambrana with the drug conspiracy. At Zambrana's trial, the government introduced fourteen tapes in their entirety of conversations between various members of the conspiracy. Although the word "cocaine" was never used in the telephone conversations, the government introduced testimony at trial that the co-conspirators used code words such as "the white one" or "chocolate" as substitutes for the term cocaine.

At Zambrana's trial, the government played fourteen taped conversations, spoken in a mixture of Spanish and English, in open court for the jury. As an aid to the jurors while they listened to the tapes, the trial court allowed the jurors to use English transcripts of government-prepared translations of those portions of the conversations that were in Spanish. Ava Cooper, who was qualified at trial as an expert in the translation of Spanish into English, testified that the English transcripts of the Spanish conversations were accurate.*fn2 The court admitted the fourteen tapes into evidence, but not the government-prepared transcripts of those tapes. Since the transcripts were not evidence, copies of them were not sent to the juryroom. The names of those persons speaking on the tapes were noted in the margin of the transcripts, but the jury was cautioned that the identification of the speakers was not evidence in the case.

On appeal, Zambrana challenges his convictions on three grounds. First, he contends that the government selected only certain drug-related conversations to introduce into evidence. Second, he claims that it was improper for the court to admit certain taped conversations into evidence because they were inaccurately translated from Spanish into English. Finally, he argues that the jury did not give enough weight to the testimony of co-conspirator, Andre Sanchez.

II.

Zambrana asserts that the government played only certain drug-related conversations for the jury, rather than allowing the jurors to hear the entire conversations. In particular, he argues that the government failed to record the entire conversations. He also argues that the government did ...


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