United States v. Nunez

532 F.3d 645, 2008 U.S. App. LEXIS 14801, 2008 WL 2699656
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 11, 2008
Docket07-2617
StatusPublished
Cited by34 cases

This text of 532 F.3d 645 (United States v. Nunez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Nunez, 532 F.3d 645, 2008 U.S. App. LEXIS 14801, 2008 WL 2699656 (7th Cir. 2008).

Opinion

BAUER, Circuit Judge.

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. 1

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)(l)(A)(viii), and 846. 2 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 metham-phétamine.

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 special *650 ists’ 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 difference to you in your deliberations, will be entirely up to you to decide.

The language specialists testified at trial that the transcripts reflected what they heard in the conversations, and that the footnotes and quotation marks were based on what they understood the code words’ meanings to be from their own experiences. They also testified that they inserted the quotation marks and footnotes on their own accord, and not at the government’s (or anyone else’s) request.

Agent Steele, a Missouri State Trooper for fourteen years and a DEA special agent for seven, testified that in his training and experience, code words such as “lemonade” and “windows” referred to methamphetamine, “greñudas” referred to marijuana, and “tickets” referred to payment for drugs. Nunez testified in his defense and admitted that he was a drug dealer and agreed that “greñudas” meant marijuana and that “tickets” referred to money, but claimed “lemonade” also referred to marijuana and that he was unfamiliar with the term “windows.” Because Nunez’s testimony at trial about the code words’ meanings contradicted the definitions he supplied during his proffer session, Agent Steele returned to the stand in the government’s rebuttal case and testified about Nunez’s proffer statements, including Nunez’s statement that the terms “lemonade” and “windows” referred to methamphetamine.

Nunez’s first argument on appeal is that the district court erred in permitting the government to introduce transcripts of the wiretap calls that included quotation marks and footnotes concerning certain words that it claimed were code words for drugs. We review the district court’s decision to allow the government to introduce the transcripts under an abuse of discretion standard. United States v. Ceballos, 385 F.3d 1120, 1124 (7th Cir.2004); United States v. Breland, 356 F.3d 787, 794 (7th Cir.2004). The district court has wide discretion in determining whether to allow juries to use written transcripts as aids while listening to audio recordings. Breland, 356 F.3d at 794 (citing United States v. Keck, 773 F.2d 759, 766 (7th Cir.1985)). We will not disturb the court’s decision if the error was harmless. See *651 Fed.R.Crim.P. 52(a); see United States v. Gochis, 256 F.3d 739

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Bluebook (online)
532 F.3d 645, 2008 U.S. App. LEXIS 14801, 2008 WL 2699656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-nunez-ca7-2008.