Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 CR 815-Rebecca R. Pallmeyer, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before BAUER, WOOD, and SYKES,Circuit Judges.
Kenneth Gaytan was indicted for distribution of crack cocaine based on two controlled buys arranged by the Federal Bureau of Investigation in which Gaytan sold substantial quantities of crack to a confidential informant named James Worthen. The FBI captured the negotiations and both transactions on audio recordings. Agents also conducted visual and video surveillance of the controlled buys, but because of gaps in this surveillance, they did not actually see-and the video recordings do not show-money and drugs changing hands. Nor did the government produce Worthen to testify at trial. So in this sense the case against Gaytan was circumstantial.
Before each transaction agents equipped Worthen with buy money and an audio-recording device, and they watched as he approached Gaytan at the prearranged meeting places. On both occasions, however, Worthen got into Gaytan's car-out of the agents' sight and the surveillance video's range. What the two said to each other was audio-recorded, but what they did had to be inferred. After each transaction Worthen returned to the agents minus the money but in possession of the agreed-upon quantity of crack cocaine. On the strength of the audio recordings and testimony from the case agents, a jury convicted Gaytan of two counts of distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1).
Gaytan appeals, challenging the sufficiency of the evidence to sustain his convictions. He also claims that two of Worthen's recorded statements were testimonial hearsay, and the government's use of them at trial violated his Sixth Amendment right of confrontation as explained in Crawford v. Washington,541 U.S. 36 (2004). He also mounts a non-constitutional challenge to the government's use of these statements; he argues that allowing the case agents to testify about Worthen's recorded statements was unfairly prejudicial under Rule 403 of the Federal Rules of Evidence. Finally, Gaytan claims that Michael Moreland, one of the FBI agents, gave expert testimony about some drug jargon heard on the recordings without first having been disclosed or qualified as an expert witness.
We reject these arguments and affirm. The evidence presented at trial was easily sufficient to sustain Gaytan's convictions. There was no Confrontation Clause violation; the two recorded statements Gaytan challenges were offered for context, not for their truth. The FBI agents' testimony about the recordings was not unfairly prejudicial. Finally, the challenged portion of Agent Moreland's testimony did not amount to expert opinion; even if it did, admitting it was not plain error.
On two separate occasions in 2006, the FBI arranged for its confidential informant James Worthen to make controlled purchases of crack cocaine from Gaytan. On March 8, 2006, FBI Special Agent Jennifer Hall searched Worthen and equipped him with audio- and video-recording devices and a transmitter. Under FBI surveillance Worthen approached Gaytan's home in Chicago and called for him; Gaytan came out and together they walked down the block. Worthen told Gaytan, "My brother just came with some dude who's tr-, trying to get two ounces of rock." Gaytan responded, "What you need?" Worthen clarified, "I'm trying to get, f-ing um, a couple O's of rock, man." Gaytan replied, "Where the loot at? . . . I'll give it to you for six bills, dog." Gaytan added, "[I]f you would'a came last night I would'a hit you with a ball, man." When Worthen told Gaytan he needed to go get the money, Gaytan responded, "Come on, I'll be here."
FBI agents again searched Worthen and gave him $1,200 in buy money to complete the drug transaction with Gaytan. Worthen then met with Gaytan in Gaytan's car. The agents could not see the two in the car but were able to hear the conversation through the transmitter. Gaytan expressed concern that "[t]he po-lice" were "watching [his] crib" and told Worthen to meet him at another location. The agents later observed Worthen waiting at the agreed location and watched him again get into Gaytan's car. Gaytan then explained to Worthen, "[O]ne is, is regular, like six hundred . . . another one is better. You, this is smoking cane, right?" Worthen answered, "Yeah . . . that's what they want."
Later in the conversation, Gaytan again asked Worthen, "Where the loot at?" Worthen responded, "Right here . . . (counting money) Six. So you're going to get the other one right now too?" Gaytan replied, "Yeah." At this point the sound of the car door opening and closing can be heard. After a few minutes, Gaytan is heard reentering the car and saying, "This one's good. That one's gonna have you on your ass." Worthen then left the car and reported back to the agents, giving them two ouncesize quantities of crack cocaine. The agents again searched Worthen and found no money or other drugs.
The FBI arranged for Worthen to make a second controlled purchase from Gaytan on April 19. The day before this transaction, April 18, the agents recorded a phone conversation in which Worthen asked Gaytan, "[D]o you remember when I came over there with my brother and them, and I got those two big ones from you?"
Gaytan responded, "Yeah." Worthen told Gaytan that he would like to make a similar purchase the next day, and Gaytan said to call him. In another recorded call on April 19, the two arranged to meet at a park. As in the earlier transaction, before the meeting FBI agents searched Worthen, supplied him with buy money, and equipped him with an audio and video recorder and a transmitter. He then entered the park to meet Gaytan. Gaytan asked Worthen, "How much you got?" Worthen replied, "How much is it?" Gaytan answered, "It's like, seven fifty." Gaytan then told Worthen to wait while he went to get his car.
Agents observed Gaytan leave the park and then pull up in his car. Worthen got in and Gaytan drove to his home. When they arrived, Gaytan said, "Hold on, I'll go get some squares." Noises on the recording indicate that Gaytan got out of the car and then returned. He then moved his car to a nearby alley. Surveillance agents, including Moreland, observed this maneuver. Gaytan then told Worthen, "[J]ust get the money ready, I'll go get it." More noises on the recording indicate that Gaytan left the car, returned, and then said, "It's right there . . . . [I]t's right there in the alley." Finally, Gaytan is heard dropping Worthen off and driving away from the alley. The agents followed Worthen to a prearranged meeting spot where he gave Agent Moreland two ouncesized quantities of crack; again, he no longer had the buy money.
A grand jury returned an indictment charging Gaytan with two counts of distributing more than 50 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). At trial the government introduced portions of the audio and video recordings from the two controlled buys and the audio recordings of the phone calls setting up the April 19 transaction. Agents Hall and Moreland also testified about their role in setting up and observing the controlled buys. From time to time during their testimony, the agents were asked about what they heard on the recordings. As relevant to Gaytan's argument here, Agent Moreland explained that he knew that the April 19 controlled buy would involve two ounces of crack cocaine because during the April 18 phone call, "[Worthen] initially asked for 'two big ones' and referred to a previous drug purchase on March 8th, 2006," which involved the same quantity. At several points during the trial, the court instructed the jury that Worthen's recorded statements were not to be considered for their truth, but rather to provide context for Gaytan's recorded statements.
The government also called several expert witnesses. A chemist from the Drug Enforcement Administration testified that she tested the substances involved in the controlled purchases and confirmed that they contained cocaine base. She also testified about drug weight; she said the crack recovered on March 8 weighed 49.1 grams and the crack recovered on April 19 weighed 53.3 grams. DEA Officer Robert Coleman also testified as an expert in narcotics trafficking. He identified the substances recovered on both dates as crack cocaine based on their appearance and smell. He also offered testimony interpreting some of the coded language heard in the recordings. He said that "rock" meant crack cocaine, "smoking cane" referred to getting high with crack cocaine, "O" referred to an ounce of crack, and "eight-ball" meant one-eighth ounce of crack.
The jury convicted Gaytan on both counts and found that he distributed more than 5 but less than 50 grams of crack cocaine on March 8, 2006, and more than 50 grams of crack cocaine on April 19, 2006. The district court ...