United States v. Aguilera-Meza

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS May 26, 2009
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 08-4102
EUSEBIO AGUILERA-MEZA, (D.C. No. 2:05-CR-00887-DAK)
(D. Utah)
Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRISCOE, McKAY, and HARTZ, Circuit Judges.

A jury convicted Eusebio Aguilera-Meza on two counts of conspiring to

commit money laundering, one count of conducting an unlicensed money

transmitting business, two counts of failing to file a Currency Transaction Report,

and one count of illegal reentry. The district court sentenced Aguilera-Meza to

276 months’ imprisonment and 36 months’ supervised release. Aguilera-Meza

appeals his convictions and sentence. We have jurisdiction pursuant to 28 U.S.C.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
§ 1291, and affirm.

I

With others, Aguilera-Meza operated Envios Aguilera, a business that

conducted wire transfers of money between the United States and Mexico. At

times, the business operated without the necessary licensing. Through this

business, Aguilera-Meza transmitted from the United States to Mexico funds from

illegal drug transactions.

Based on these actions, a grand jury indicted Aguilera-Meza and several

co-defendants on eleven counts. Specifically, the grand jury charged that

Aguilera-Meza: (1) conspired under 18 U.S.C. § 1956(h) to commit money

laundering under 18 U.S.C. § 1956(a)(2)(A), (B) (“Count 1”); (2) operated an

unlicensed money transmitting business under 18 U.S.C. § 1960 (“Count 3”); (3)

conspired under 18 U.S.C. § 1956(h) to commit money laundering under 18

U.S.C. § 1956(a)(3)(B) (“Count 5”); (4) failed to file a required report on a

currency transaction on August 3, 2005 under 31 U.S.C. § 5313 (“Count 6”); (5)

failed to file a required report on a currency transaction on September 1, 2005

under 31 U.S.C. § 5313 (“Count 7”); and (6) reentered the United States after

being removed in violation of 8 U.S.C. § 1326(a) (“Count 9”).

Discovery on these charges was extensive, including several recorded

conversations, transcripts, and business records. By September 20, 2006, when

Aguilera-Meza’s trial counsel was added for his defense, discovery filled boxes

2
and was available through a searchable computer database. Counsel began

receiving and reviewing this discovery by November of 2006.

On November 13, 2006, Aguilera-Meza filed a motion to continue his trial,

then set for February 5, 2007. The court granted this motion, continuing the trial

to June 25, 2007. On April 26, 2007, Aguilera-Meza filed his second motion to

continue trial based on the amount of discovery to review, noting “defense

counsel has not had adequate time to review all discovery received . . . .” R. Vol.

I, Doc. 265 at 1. The district court granted the second motion, continuing trial to

November 27, 2007. On October 2, 2007, Aguilera-Meza filed his third motion to

continue trial. After hearing arguments from counsel, the district court denied

this motion and directed the parties to exchange exhibits by November 7, 2007.

On November 15, 2007, Aguilera-Meza filed his fourth motion to continue trial,

stating that “he and his counsel are not adequately prepared for trial in this

matter, can not become adequately prepared for trial by the time of trial date, and

that, if [Aguilera-Meza] is forced to go to trial at this time under these

circumstances, he will be denied effective assistance of counsel.” R. Vol. I, Doc.

312 at 1. Aguilera-Meza acknowledged receiving a list of “specific proposed

exhibits . . . on November 12, 2007,” and being informed of the identity of the

confidential informant the week before. Id. at 2–3. After again hearing

arguments from counsel, the district court denied the motion to continue trial. On

November 21 and 27, 2007, Aguilera-Meza filed additional motions to continue

3
trial, citing concerns over the status of translations of recorded conversations and

the difficulty for defense counsel to meet with Aguilera-Meza, who was in

custody. The court denied these requests.

Aguilera-Meza also filed several pretrial discovery motions, including a

request for a hearing under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579

(1993), a request for disclosure of the identity of cooperating witnesses, and a

motion in limine that also requested a hearing under United States v. James, 590

F.2d 575 (5th Cir. 1979). The district court denied the requests for the Daubert

and James hearings. The government disclosed the identity of the confidential

informant in early November 2007. On November 21, 2007, the prosecution filed

its proposed witness list, which included the confidential informant.

The district court conducted Aguilera-Meza’s trial from November 28,

2007 to December 7, 2007. The government presented testimony from fifteen

witnesses during its case-in-chief. Among these witnesses, and relevant to the

present appeal, were Roberto Cortez, Judy Romero, Leticia Valesquez, Michael

Minichino, and Michael Hamideh. Jeff Fletcher, a Special Agent with the IRS,

also testified and discussed an exhibit summarizing Aguilera-Meza’s numerous

transactions. All of these witnesses were listed on the government’s witness list.

Transcripts and translations of recorded conversations involving Aguilera-Meza

were presented to the jury. Aguilera-Meza testified in his defense. The jury

convicted Aguilera-Meza on all six counts. The district court sentenced Aguilera-

4
Meza to 276 months’ imprisonment and 36 months’ supervised release.

Aguilera-Meza now appeals, raising three primary arguments. First,

Aguilera-Meza challenges the sufficiency of the evidence for his money

laundering convictions. Second, Aguilera-Meza argues that his inability to

properly cross-examine certain testimony violated his Sixth Amendment rights.

Third, Aguilera-Meza argues that his sentence is disproportionate to the crimes

for which he was convicted, violating his Eighth Amendment rights.

II

I. The Money Laundering Conspiracy Convictions

On Count 1, the jury convicted Aguilera-Meza under 18 U.S.C. § 1956(h)

of conspiring to commit money laundering under 18 U.S.C. § 1956(a)(2)(A), (B).

On Count 5, the jury convicted Aguilera-Meza under 18 U.S.C. § 1956(h) of

conspiring to commit money laundering under 18 U.S.C. § 1956(a)(3)(B).

Aguilera-Meza argues that the government did not prove all of the elements

necessary for a conviction under these statutes.

As a question of law, we review challenges to the sufficiency of the

evidence de novo. United States v. Rahseparian, 231 F.3d 1257, 1261 (10th Cir.

2000) (applying this standard in the context of a money laundering conviction).

In applying this standard, “we examine, in a light most favorable to the

government, all of the evidence together with the reasonable inferences to be

drawn therefrom and ask whether any rational juror could have found the essential

5
elements of the crime beyond a reasonable doubt.” Id. (quotation omitted).

Section 1956(h) incorporates the other money laundering statutes, by

providing: “Any person who conspires to commit any offense defined in this

section . . . shall be subject to the same penalties as those prescribed for the

offense the commission of which was the object of the conspiracy.” 18 U.S.C. §

1956(h). To convict Aguilera-Meza under this statute, the government was

required to prove: “(1) the existence of an agreement (2) to break the law, (3) an

overt act (4) in furtherance of the conspiracy’s object, and (5) that he willfully

entered the conspiracy.” United States v. Shepard, 396 F.3d 1116, 1123 (10th

Cir. 1992). Here, the “law[s]” that the jury found that Aguilera-Meza agreed to

“break” were 18 U.S.C. § 1956(a)(2)(A), (B) and § 1956(a)(3)(B).

Section 1956(a)(2) provides:

Whoever transports, transmits, or transfers, or attempts to transport,
transmit, or transfer a monetary instrument or funds from a place in
the United States to or through a place outside the United States or to
a place in the United States from or through a place outside the
United States—
(A) with the intent to promote the carrying on of specified unlawful
activity; or
(B) knowing that the monetary instrument or funds involved in the
transportation, transmission, or transfer represent the proceeds of
some form of unlawful activity and knowing that such transportation,
transmission, or transfer is designed in whole or in part—
(i) to conceal or disguise the nature, the location, the source, the
ownership, or the control of the proceeds of specified unlawful
activity; or
(ii) to avoid a transaction reporting requirement under State or
Federal law, shall be sentenced to a fine of not more than $500,000
or twice the value of the monetary instrument or funds involved in

6
 the transportation, transmission, or transfer whichever is greater, or
imprisonment for not more than twenty years, or both. For the
purpose of the offense described in subparagraph (B), the defendant’s
knowledge may be established by proof that a law enforcement
officer represented the matter specified in subparagraph (B) as true,
and the defendant’s subsequent statements or actions indicate that the
defendant believed such representations to be true.

Id. § 1956(a)(2). Thus for Count 1, the government was required to prove that

Aguilera-Meza agreed to (1) transfer or attempt to transfer funds (2) from the

United States (3) to a place outside of the United States (4) “with the intent to

promote the carrying on of specified unlawful activity”; or “knowing that the . . .

funds involved in the . . . transfer represent the proceeds of some form of

unlawful activity and knowing that such . . . transfer is designed in whole or in

part to conceal or disguise the nature, the location, the source, the ownership, or

the control of the proceeds of specified unlawful activity.” Id.; Cuellar v. United

States, 128 S. Ct. 1994, 2002 (2008).

In pertinent part, § 1956(a)(3) provides:

Whoever, with the intent . . . (B) to conceal or disguise the nature,
location, source, ownership, or control of property believed to be the
proceeds of specified unlawful activity . . .
conducts or attempts to conduct a financial transaction involving
property represented to be the proceeds of specified unlawful
activity, or property used to conduct or facilitate specified unlawful
activity, shall be fined under this title or imprisoned for not more
than 20 years, or both. For purposes of this paragraph and paragraph
(2), the term “represented” means any representation made by a law
enforcement officer or by another person at the direction of, or with
the approval of, a Federal official authorized to investigate or
prosecute violations of this section.

7
Id. § 1956(a)(3). Thus for Count 5, the government was required to prove that

Aguilera-Meza entered into an agreement (1) with the intent to (2) “conceal or

disguise the nature, location, source, ownership, or control of property” that (3)

he believed to be the proceeds of specified unlawful activity (4) by conducting a

financial transaction (5) involving property that was represented to be the

proceeds of, or used to conduct, specified unlawful activity. Id.

First, Aguilera-Meza contends that the government failed to connect the

money laundering in Count 1 with an underlying “specified unlawful activity.”

18 U.S.C. § 1956(a)(2)(A), (B). Aguilera-Meza asserts, “no financial transaction

was separate from and in addition to the underlying crime of unlicensed money

transmitting affecting interstate and foreign commerce, in violation of 18 U.S.C. §

1960(2) also charged against [Aguilera-Meza].” Aplt. Br. at 22. We reject this

argument.

The evidence at trial indicates that the specified unlawful activity necessary

to support Aguilera-Meza’s convictions for money laundering was drug

trafficking. Aguilera-Meza’s briefing repeatedly acknowledges this. 1 Aguilera-

1
We note that in Aguilera-Meza’s reply brief, he alters this argument,
conceding that “[t]he trial court record is replete with inferences and innuendoes
that some third parties were dealing in drugs, but [now arguing] there is no direct
evidence of any particular drug transaction, the proceeds of which ended up in the
hands of Aguilera-Meza, and which were then laundered.” Aplt. Reply Br. at 16.
To the extent this argument first appears in Aguilera-Meza’s reply brief, we do
not consider it. See United States v. Fields, 516 F.3d 923, 949 (10th Cir. 2008)
(declining to address new arguments first raised in a reply brief). To the extent
(continued...)

8
Meza testified that he was not involved in drug trafficking, noting that he does

not “even drink or smoke.” R. Vol. 2, Dec. 6, 2007 at 62. Consequently, the

underlying crime, drug trafficking, was separate from the crimes of unlicensed

money transmitting affecting interstate or foreign commerce and money

laundering. Aguilera-Meza’s reference to a “merger problem” is without merit.

Aplt. Br. at 24; see United States v. Kennedy, 64 F.3d 1465, 1477 (10th Cir.

1995) (“All that is required to violate [§] 1956 is a transaction meeting the

statutory criteria that takes place after the underlying crime has been

completed.”).

Second, Aguilera-Meza contends that the funds he transferred to Mexico

were not “proceeds” under the money laundering statute, citing United States v.

Santos, 128 S. Ct. 2020 (2008). Aguilera-Meza argues that the funds he

transferred were to buy additional drugs, and were therefore not profits. Aplt. Br.

at 24, 28.

Even if we were to agree that Santos holds that under § 1956 “proceeds”

should be defined by “profits” and not “receipts,” this distinction is of no help to

Aguilera-Meza. Santos, 128 S. Ct. at 2025. His argument is countered by an

example the Supreme Court provides in Santos: “For example, someone accepting

1
(...continued)
this argument merits consideration, none of the identified elements of conspiracy
to commit money laundering requires evidence of a specified instance of the
unlawful activity. Instead, the elements require evidence that the funds were
proceeds of unlawful activity.

9
receipts from what he knows to be a long-continuing drug-dealing operation can

be found to know that they include some profits. And a jury could infer from a

long-running launderer-criminal relationship that the launderer knew he was

hiding the criminal’s profits.” Santos, 128 S. Ct. at 2029. The evidence

presented in the present case established that Aguilera-Meza repeatedly accepted

receipts from persons he knew were drug dealers, creating the inference that at

least some of the funds included profits. Accordingly, the distinction between

proceeds and receipts discussed in Santos does not support Aguilera-Meza’s

position.

Third, Aguilera-Meza argues that the evidence was insufficient to show an

intent to conceal or disguise the nature, location, source, ownership, or control of

the proceeds of specified unlawful activity. 2 In United States v. Shepard, we

identified evidence potentially probative of an intent to conceal as including:

“unusual secrecy surrounding the transaction; structuring the transaction to avoid

attention; depositing illegal profits in the bank account of a legitimate business;

highly irregular features of the transaction; using third parties to conceal the real

2
Aguilera-Meza explicitly argues that “[t]he statute is clear that it requires
proof that the purpose of the transportation or transfer was to cleanse illicit funds
of their appearance of taint with criminality”; “creating the appearance of
legitimate wealth is the criminal conduct targeted by the money laundering
statute.” Aplt. Br. at 25–26. This language does not appear in the statute. We do
not find Aguilera-Meza’s efforts to include this requirement into the statutorily-
listed elements to be persuasive. Cuellar v. United States, 128 S. Ct. 1994,
2000–01 (2008) (similarly rejecting the inclusion of a “legitimate wealth”
element).

10
owner; [and] a series of unusual financial moves cumulating in the transaction . . .

.” 396 F.3d 1116, 1120 (10th Cir. 2005) (quotation omitted).

Aguilera-Meza concedes that “[t]he evidence before the lower court

specifically indicates that [Aguilera-Meza] took money into his business,

deposited the funds into his own account, then transferred money to other

accounts, some of them fictitious, or caused money to go to Mexico by check

cashing.” Aplt. Br. at 30–31. This concession acknowledges that he deposited

the funds in the bank account of a “legitimate” business, and used third parties to

conceal the real owner. Moreover, the use of fictitious accounts indicates

structuring the transaction to avoid attention, and is a highly irregular feature of

the transaction. See Shepard, 396 F.3d at 1123 (noting that the use of fake names

demonstrates an intent to conceal or disguise the illegal funds because it

structures the transaction “in a way to avoid attention,” “use[s] third parties to

conceal the real owner,” and “involve[s] highly irregular features”).

II. Sixth Amendment

Aguilera-Meza argues that the district court violated his right “to be

confronted with the witnesses against him,” U.S. Const. amend VI, by (1)

allowing the testimony of last-minute witnesses; (2) allowing the testimony of a

confidential informant whose identity was not given until the last minute; (3)

allowing the admission of translated transcripts; (4) allowing portions of expert

testimony; (5) admitting summary exhibits; and (6) allowing co-conspirator

11
statements. Each of these arguments stems in part from the district court’s denial

of Aguilera-Meza’s requests for a continuance.

We review a denial of a request for a continuance for abuse of discretion.

United States v. Flanders, 491 F.3d 1197, 1216 (10th Cir. 2007). A trial court

“enjoys broad discretion on matters of continuances, even when the parties

implicate Sixth Amendment issues.” United States v. Mendoza-Salgado, 964 F.2d

993, 1016 (10th Cir. 1992). In exercising its broad discretion, we have identified

several factors for the district court to consider: “[1] the diligence of the party

requesting the continuance; [2] the likelihood the continuance, if granted, would

accomplish the purpose underlying the party’s expressed need for the

continuance; [3] the inconvenience to the opposing party, its witnesses, and the

court resulting from the continuance; [4] the need asserted for the continuance

and the harm that appellant might suffer as a result of the district court’s denial of

the continuance.” United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990)

(quotation omitted).

Here, the district court had granted several motions for continuance filed by

Aguilera-Meza. By the time the case was finally tried, Aguilera-Meza’s counsel

had worked on the case for over one year and presumably understood the issues.

At trial, the government called many witnesses, each of whom would have been

inconvenienced had the court granted yet another continuance. While he

identifies several areas where he considered his defense preparation to be

12
deficient, Aguilera-Meza has not made any specific allegation on appeal as to

how he would have directly benefitted from a continuance. Even if the district

court did not explicitly address these concerns in its denial, “it remained free to

balance the numerous factors articulated here in rejecting [Aguilera-Meza’s]

motion [for a continuance].” Mendoza-Salgado, 964 F.3d at 1016. We conclude

that the district court did not abuse its discretion in denying Aguilera-Meza’s

requests for a continuance.

A. Last-Minute Witnesses

Aguilera-Meza asserts that “[t]he government only informed [him] of the

testimony of Robert[o] Cortez, Judy Romero, and Leticia Valesquez mere days

before the trial.” Aplt. Br. at 32. Aguilera-Meza contends that this short notice

prejudiced his defense by not providing sufficient preparation time.

We review the admission of testimony from last-minute witnesses for abuse

of discretion. United States v. Nevels, 490 F.3d 800, 802–03 (10th Cir. 2007)

(applying this standard for “unlisted government witnesses”). We review de

novo, however, whether the admission of such evidence violates the

Confrontation Clause of the Sixth Amendment. United States v. Townley, 472

F.3d 1267, 1271 (10th Cir. 2007).

We disagree with Aguilera-Meza’s characterization of these witnesses as

“last minute.” The government listed these witnesses in its proposed witness list,

which was filed one week before trial. R. Vol. I, Doc. 318 at 1–2. Moreover,

13
Aguilera-Meza does not identify how the timing of the government’s disclosure of

the identified witnesses violated any court order.

Even if we accept the assertion that the timing of the government’s witness

disclosure hindered the ability to confront the witnesses, we reject Aguilera-

Meza’s unsupported assertion that “[t]he trial court erred by denying [Aguilera-

Meza] his right to confrontation.” Aplt. Br. at 33. “The Supreme Court has

established that no constitutional right to pretrial discovery of witnesses exists in

non-capital cases.” Nevels, 490 F.3d at 803 (citing Weatherford v. Bursey, 429

U.S. 545, 559 (1977)) (emphasis omitted). Additionally, there is not a statute or

rule of procedure requiring pretrial disclosure of non-expert witnesses. Id.

This reasoning equally resolves Aguilera-Meza’s unsupported assertion that

“[t]he District Court erred in allowing the testimony of the confidential informant,

whose identity was not given . . . until the last minute, despite his early demand

to identify the informant.” Aplt. Br. at 31. See United States v. Green, 178 F.3d

1099, 1108 (10th Cir. 1999) (rejecting the argument that “because [defendant]

was unaware of the informant’s identity until trial, his Sixth Amendment right to

confront and cross-examine the key witness against him was never provided

. . . .” (quotation omitted)).

B. James Hearing

Aguilera-Meza states that he “timely demanded a [James] hearing . . . ,

[and that the district court’s decision to] proceed without a [James] hearing

14
compromised [his] right to due process.” Aplt. Br. at 34. We reject this

argument for several reasons.

First, it does not appear that Aguilera-Meza “timely” requested a James

hearing. Aguilera-Meza did not file a motion requesting a James hearing.

Instead, Aguilera-Meza’s reference to a James hearing appears in a paragraph of a

motion in limine filed the day before the start of trial. R. Vol. I Doc. 332, at 3

(“For that purpose, the defendant would be entitled to a James hearing in advance

of the proposed testimony.”). Even if we were to construe Aguilera-Meza’s

reference to a James hearing as a request for a James hearing, this request was

untimely.

Second, while we have reiterated “our strong preference” for James

hearings when the prosecution relies on co-conspirator statements, a James

hearing is not required. United States v. Gonzalez-Montoya 161 F.3d 643,

648–49 (10th Cir. 1998). In the alternative to holding a James hearing, a district

court may properly admit a co-conspirator statement “by provisionally admitting

the statement with the caveat that the party offering it must prove the existence of

the predicate conspiracy through trial testimony or other evidence.” Id. at 649

(internal quotations and alterations omitted); Townley, 472 F.3d at 1273

(identifying both alternatives). The trial court retains some discretion in choosing

between these alternatives. United States v. Urena, 27 F.3d 1487, 1491 (10th Cir.

1994).

15
 Aguilera-Meza does not contend that the district court erred in its

provisional admission of the co-conspirator testimony. 3 Further, Aguilera-Meza

does not specifically identify to which co-conspirator statements he objects,

offering only the conclusory statement, “[t]he testimony of both Hamideh and

Minichino are replete with discussions of conversations between themselves and

[Aguilera-Meza’s] wife, Veronica Moran, her father, her cousin, or [Aguilera-

Meza’s] brothers[; s]uch statements should have been found to be hearsay, not

specifically in furtherance of a money laundering conspiracy . . . .” Aplt. Br. at

34. Based on our prior analysis concluding there was sufficient evidence to

support Aguilera-Meza’s money laundering convictions, we conclude that the

district court’s decision to not conduct a James hearing did not prejudice

Aguilera-Meza.

Aguilera-Meza also argues that the admission of the co-conspirator

statements violated his Sixth Amendment right to confrontation under Crawford

v. Washington, 541 U.S. 36 (2004). We explicitly rejected similar arguments in

Townley. 472 F.3d at 1273 (“We find no merit to Appellant’s unfounded and

unsupported contention that Crawford’s instruction on testimonial hearsay

somehow eviscerated Federal Rule of Evidence 801(d)(2)(E), especially since

Rule 801(d)(2)(E) treats declarations by coconspirators not as an exception to the

3
In his reply brief, Aguilera-Meza asserts, without support or citation, that
“the Government . . . was permitted wholesale to inquire of multiple witnesses
about bad conduct, not eventually tied to [Aguilera-Meza].” Aplt. Reply Br. at 6.

16
hearsay rules, but as nonhearsay.”).

C. Expert Testimony

Aguilera-Meza raises several objections related to the district court’s

admission of expert testimony. Aguilera-Meza, without support, first asserts that

the trial court violated his Sixth Amendment right to confrontation by not

conducting a Daubert hearing. While a district court must “make some kind of

reliability determination” before admitting expert testimony, the district court

retains “great latitude in determining how to make Daubert reliability findings.”

United States v. Velarde, 214 F.3d 1204, 1209 (10th Cir. 2000) (emphasis

omitted). Accordingly, “Daubert does not mandate an evidentiary hearing.”

United States v. Nichols, 169 F.3d 1255, 1262 (10th Cir. 1999) (“[W]e simply

require a sufficiently developed record in order to allow a determination of

whether the district court properly applied the relevant law.” (quotation omitted)).

Second, Aguilera-Meza argues that the district court improperly admitted

expert testimony by law enforcement officers regarding foreign language

translations. We address these arguments related to these witnesses individually.

Aguilera-Meza challenges the testimony of Michael Minichino, a criminal

investigator with the Bureau of Alcohol, Tobacco, Firearms, and Explosives

(“ATF”), for his qualifications as a Spanish translator. Minichino testified,

however, that he had two years of formal Spanish education at the University of

Utah and has used Spanish in his capacity as a federal law enforcement officer.

17
R. Vol. 2, Nov. 29, 2007, at 87. Based on this testimony, “[t]he trial court clearly

could have found [Minichino’s] qualifications sufficient to satisfy the liberal

standard under Fed. R. Evid. 702 regarding expert qualifications.” See United

States v. Gomez, 67 F.3d 1515, 1526 (10th Cir. 1995) (applying this conclusion to

an individual with a minor in Spanish who also had spoken Spanish on a 23-

month religious mission in South America).

Similarly, Aguilera-Meza challenges the testimony of Michael Hamideh, a

Salt Lake City Police Officer, regarding his expertise in Spanish drug slang.

Aguilera-Meza objects to Hamideh’s commenting upon the definition of “debtos”

and “mercandia.” Spanish, however, was Hamideh’s first language; his mother

was Peruvian. R. Vol. 2, Nov. 30, 2007, at 37. Hamideh worked “approximately

50 or more times” in an undercover capacity speaking in Spanish drug slang. Id.

(“[T]he primary type of undercover work that I’ve done has been in Spanish. And

so all my experience has been with Spanish terminology.”). These qualifications

establish Hamideh’s ability to testify regarding Spanish drug slang. United States

v. Verdin-Garcia, 516 F.3d 884, 893 (10th Cir. 2008) (“Once foundation is laid

that a translator has that savvy, her translation of drug slang is no more a matter

of opinion than her translation of any other slang or idiomatic usage. Differences

of opinion on the proper meaning or translation of a slang term are to be resolved

. . . through cross-examination or by the presentation of another qualified

18
translator with a contrary view.”). 4

Aguilera-Meza also challenges these witnesses’ qualifications as experts in

voice recognition. Both witnesses, however, had previously conversed with

Aguilera-Meza. Because they heard Aguilera-Meza’s voice in person, they could

identify his voice under Federal Rule of Evidence 901(b)(5). 5 United States v.

Hardwell, 80 F.3d 1471, 1494 (10th Cir. 1996) (“Expert testimony is not required

for identification of a voice.”).

Third, Aguilera-Meza challenges the testimony of Jeff Fletcher, a Special

Agent with the IRS, for his testimony “concerning the money transfers” and his

references to “summary exhibits.” Aplt. Br. at 40–41. The basis of Aguilera-

Meza’s challenge to this testimony appears to be the district court’s denial of a

Daubert hearing and Aguilera-Meza’s inability to refute the summary exhibit due

to short notice.

4
Even if we found that Hamideh was insufficiently qualified to comment
on Spanish drug slang, Aguilera-Meza did not suffer any prejudice from this
testimony. Aguilera-Meza does not cite where in the trial transcript the slang
terms, “debtos” and “mercandia,” are mentioned in the trial transcript. Instead, it
appears that Aguilera-Meza challenges, in part, testimony on the word “drogas.”
Aguilera-Meza, at repeated prompting by defense counsel, testified that “drogas”
is Spanish for “debts.” E.g., R. Vol. 2, Dec. 6, 2007 at 1128, 1176, 1182 (“D-R-
O-G-A-S, D-R-O-G-A-S, that’s the word that you’re talking about; correct? . . .
In this context, you understand the word ‘drogas, drogas’ to be debts, debts?”).
5
Rule 901(b)(5) provides an example for identification conforming with
the rules of Evidence: “Identification of a voice, whether heard firsthand or
through mechanical or electronic transmission or recording, by opinion based
upon hearing the voice at any time under circumstances connecting it with the
alleged speaker.” Fed. R. Evid. 901(b)(5).

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 To the extent these unsupported and conclusory arguments merit

consideration, we reject them. As stated, a Daubert hearing is not mandatory.

Nichols, 169 F.3d at 1262. Further, Aguilera-Meza has not identified any

prejudice resulting from the denial of the Daubert hearing and the admission of

Fletcher’s testimony. 6 Unquestionably, Fletcher’s background of twelve years as

a special agent with “I.R.S. Criminal Investigations,” an international finance

degree, and extensive training into money laundering investigations, qualified him

as an expert on “money transfers.” R. Vol. 2, Dec. 4, 2007, at 830–31.

Regarding the summary exhibits, “[t]he admission of summaries . . . is

within the sound discretion of the trial court.” United States v. Thompson, 518

F.3d 832, 858 (10th Cir. 2008) (quotation omitted). Aguilera-Meza has not

indicated how the district court abused its discretion or how he was prejudiced by

the short notice. Although he states that “he saw the summary just immediately

before trial,” Aguilera-Meza provides no citation, support, or argument to indicate

why this summary exhibit required additional time given his months of access to

the unabridged evidence.

6
In his reply brief, Aguilera-Meza “asserts that virtually the entirety of the
testimony (the money tracing, and then testimony as to the ultimate issue),
violated the purview of the jury, when he testified that the purpose of the money
moving activities he had tracked in the exhibits would be to conceal the source of
the money . . . Only Agent Fletcher . . . testified that this evidence constituted
the crime of money laundering. This likely would have had a significant impact
in the jury’s mind, and would not constitute ‘harmless error.’” Aplt. Reply Br. at
13–14. These arguments do not clarify how a Daubert hearing would have
impacted the admission of this testimony.

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 We conclude the district court did not err in the admission of testimony or

summary exhibits.

III. The Eighth Amendment

Lastly, Aguilera-Meza “asserts that this sentence [of 276 months’

imprisonment and 36 months’ supervised release] is unduly harsh given the . . .

the underlying crimes . . . .” Aplt. Br. at 42. Aguilera-Meza contends the

sentences for the charges, except Count 9, merge. Additionally, Aguilera-Meza

argues that his sentence violates the Cruel and Unusual Punishments Clause in the

Eighth Amendment based on his comparison of his sentence with the sentences of

his co-defendants.

We review de novo whether a sentence violates the Eighth Amendment.

United States v. Gillespie, 452 F.3d 1183, 1190 (10th Cir. 2006). First, Aguilera-

Meza’s money laundering convictions, which were based on the underlying

criminal activity of drug trafficking, do not merge with the other financial

transaction convictions. Second, Aguilera-Meza has not identified any co-

defendant that is similarly situated; he makes no comparison to the present

convictions or criminal histories between himself and any co-defendant. United

States v. Rojas, 531 F.3d 1203, 1209–10 (10th Cir. 2008) (“[Defendant] cannot

show he is similarly situated to his co-defendants. His criminal history is more

extensive than [theirs].”). Finally, we note, “the Constitution does not require the

crime and the sentence to be strictly proportional. Instead, it forbids only

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extreme sentences that are grossly disproportionate to the crime. Generally, a

sentence within the limits imposed by statute is neither excessive nor cruel and

unusual under the Eighth Amendment.” Gillespie, 452 F.3d at 1190 (internal

citation and quotation omitted). Aguilera-Meza does not argue that his sentence

violates any statute or the Sentencing Guidelines. To the contrary, Aguilera-

Meza’s sentence appears to be below the applicable Sentencing Guidelines range.

Cf. Rojas, 531 F.3d at 1209 (“A sentence which falls within a properly calculated

Guideline range is entitled to a rebuttable presumption of reasonableness.”

(quotation omitted)). We conclude that the district court did not err in sentencing

Aguilera-Meza.

III

We affirm.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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