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United States v. Nunez

July 11, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
FAUSTO NUNEZ, ALSO KNOWN AS ANTONIO ROSALES, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 04 CR 161-Sarah Evans Barker, Judge.

The opinion of the court was delivered by: Bauer, Circuit Judge

ARGUED MAY 16, 2008

Before BAUER, POSNER and WOOD, Circuit Judges.

From April through October of 2004, the Drug Enforcement Administration (DEA) in Indianapolis conducted an investigation of a multi-state methamphetamine trafficking organization after a confidential informant bought one pound of methamphetamine from an individual, who was seen getting the drugs from Expedito Carrillo (also known as Isidoro Lopez-Salas). The investigation revealed that Carrillo supplied drugs to several other individuals, including Defendant- Appellant Fausto Nunez.*fn1

On October 6, 2004, Nunez was indicted on one count of conspiracy to possess with the intent to distribute and/or to distribute fifty grams or more of methamphetamine, and/or five hundred grams or more of a mixture or substance containing a detectable amount of meth-amphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 846.*fn2 Nunez was arrested on October 7, 2004 at his residence, pursuant to a federal arrest warrant. The case was tried by a jury in January of 2007, and Nunez was convicted as charged.

On appeal, Nunez argues that the district court erred in permitting the jury to use transcripts of intercepted phone conversations that marked and defined alleged code words for drug terms. Nunez also asserts that multiple instances of prosecutorial misconduct amount to cumulative error resulting in an improper verdict. For the following reasons, we reject Nunez's contentions and affirm his conviction.

A. The Transcripts

Over the course of the investigation, the DEA obtained four different court-authorized wiretaps on the cellular phones of Carrillo and other co-conspirators. Between June 18 and September 11, 2004, the DEA intercepted at least 120 conversations between Nunez and Carrillo, the majority of which were in Spanish.

On November 22, 2004, Nunez and his attorney appeared at the DEA's office in Indianapolis for a proffer session. DEA Special Agent Kevin Steele was also present. Nunez listened to three of the intercepted conversations between himself and Carrillo and advised Agent Steele that he used the terms "lemonade" and "windows" ("ventanas" in Spanish) as code words when he spoke to Carrillo about methamphetamine.

Twenty-one of the conversations intercepted between Nunez and Carrillo were admitted at trial. Because those conversations were in Spanish, Spanish-speaking language specialists who had monitored the calls during the investigation prepared transcripts of the calls in English. The transcripts were then provided to the jurors to assist them in understanding the recorded conversations. Some of the transcripts contained words that the language specialists had determined were code words. Those words were denoted in the transcripts with either quotation marks or a footnote containing the language specialists' understood definitions of the code words. The transcripts contained footnotes defining the following words:

Greñudas [hairy ones] = Mexican word usually used by drug dealers as code when referring to Marijuana.

Tickets = Word usually used by Mexican drug dealers as code word when referring to money.

Picture [retrato] = Mexican word usually used by drug dealers as code word when referring to a sample of any narcotic substance or product.

Lemonades [Limonadas] = Mexican word usually used by drug dealers as code word when referring to narcotic substances or products.

Nunez objected to the use of quotation marks and footnotes in the transcripts, arguing that "the selective use of quotation marks highlighting the Spanish terms and using footnotes is improper . . . as a means of bolstering the government's case. . . ." The district court judge ruled that the use of quotation marks and footnotes was not prejudicial or misleading, and at Nunez's request, gave a cautionary instruction to the jury regarding their use:

Those footnotes and [a language specialist's] use of that way to explain what she heard as she translated is a statement that she's made as a witness to you with respect to these matters. You don't necessarily have to accept that. And in any event what weight you choose to give to that, whether it makes any ...


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