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United States v. Cruz-Rea

November 17, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ROSALIO CRUZ-REA AND ZOYLA GARCIA-REA, DEFENDANTS-APPELLANTS.



Appeals from the United States District Court for the Southern District of Indiana, Evansville Division. No. 07 CR 41-Richard L. Young, Chief Judge.

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

ARGUED SEPTEMBER 8, 2010

Before EASTERBROOK, Chief Judge, and BAUER and KANNE, Circuit Judges.

Rosalio Cruz-Rea appeals his conviction and sentence for conspiracy to possess with the intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and his conviction and sentence for possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii). Zoyla Garcia-Rea appeals her conviction and sentence for conspiracy to possess with the intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. These cases were consoli-dated for trial and appeal. We have reviewed the district court's legal conclusions de novo and its findings of fact for clear error.

I. BACKGROUND

Law enforcement authorities launched an investigation in the summer of 2007 into the shipment of cocaine from California and Utah to Indianapolis, Indiana. During the course of this investigation, the Drug Enforcement Administration (DEA) obtained court authority to wiretap twenty-four telephone conversations which featured Spanish speakers using code language to discuss drug activities. One of these conversations involved an individual who offered to sell one kilogram of cocaine for $19,000. He described his cocaine as "good for the frying pan," which meant that his cocaine was of such high quality that it could be used to make crack cocaine. In another telephone conversation, the speaker disclosed his plan to ship cocaine from Utah to Indianapolis via a car hauler carrying a Ford Explorer. Although two witnesses testified to having these two conversations with Cruz-Rea on the telephone, Officer Marytza Toy was the only witness who actually testified that she recognized Cruz-Rea as the speaker in each of the twenty-four recorded conversations, including both of the conversations detailed above.

She based her identification on a fifteen second voice exemplar that she listened to at least fifty to sixty times. Admittedly unusual, this voice exemplar was actually a recording of Cruz-Rea's booking process, which consisted of Cruz-Rea saying his name, address, date of birth, and telephone number in English.

Following Cruz-Rea's arrest, a search of his three residences revealed cocaine and distribution materials in each residence, and handguns in the same room as the cocaine and distribution materials in two of the residences.

Near the conclusion of the investigation, authorities observed Garcia-Rea and others loading gift-wrapped packages into a Ford Focus. The DEA advised the Utah State Troopers of this information, and Trooper Nick Bowles then pulled over the Ford Focus for failing to have a license plate light. He noticed the gift-wrapped packages as he approached the car. During the traffic stop, Garcia-Rea and the passenger of the vehicle gave conflicting answers about where they were going; Trooper Bowles then searched the Ford Focus and arrested Garcia-Rea.

After being advised of her Miranda rights, Garcia-Rea admitted that she knew the gift-wrapped packages contained cocaine, that she was transporting the packages in exchange for $500, and that she had made two similar drug runs in the past.

The government called Jose Barragan as a witness during Appellants' consolidated trial. Barragan was a drug dealer, but he did not deal in cocaine and was never a part of Cruz-Rea's conspiracy. He testified that Cruz-Rea and Jose Garcia Franco (Barragan's relative) conspired to traffic cocaine and that Cruz-Rea attempted to recruit Barragan into the conspiracy by offering to advance him one kilogram of cocaine for a later payment of $20,000. Although Barragan refused this offer, Franco nevertheless continued to inform Barragan about the extent of Franco and Cruz-Rea's drug operations. Barragan testified about these statements over Appellants' objections.

A jury found Cruz-Rea and Garcia-Rea guilty of conspiracy to possess with the intent to distribute more than five kilograms of cocaine and found Cruz-Rea guilty of possession with intent to distribute 500 grams or more of cocaine. The district court sentenced Cruz-Rea to 324 months in prison and Garcia-Rea to 120 months in prison. Cruz-Rea and Garcia-Rea now challenge (1) the admissibility of Officer Toy's voice identification testimony; (2) the admissibility of transcripts and their accompanying jury instructions; (3) the admissibility of Barragan's testimony; (4) whether the handguns found near cocaine distribution materials required an offense level increase during Cruz-Rea's sentencing; and (5) the admissibility of evidence recovered from the search of the Ford Focus.

II. DISCUSSION

A. Lay Opinion Voice ...


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