United States v. Cruz-Rea

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 09-3591 & 10-1355

U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.

R OSALIO C RUZ-R EA and
Z OYLA G ARCIA-R EA,
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.

A RGUED S EPTEMBER 8, 2010—D ECIDED N OVEMBER 17, 2010

Before E ASTERBROOK, Chief Judge, and B AUER and
K ANNE, Circuit Judges.
B AUER, Circuit Judge. 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
2 Nos. 09-3591 & 10-1355

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii). Zoyla
Garcia-Rea appeals her conviction and sentence for con-
spiracy 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 investiga-
tion 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 Enforce-
ment 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 conversa-
tions, including both of the conversations detailed above.
Nos. 09-3591 & 10-1355 3

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 con-
sisted 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 resi-
dences 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 con-
tained 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
4 Nos. 09-3591 & 10-1355

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 pay-
ment 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 Appel-
lants’ objections.
A jury found Cruz-Rea and Garcia-Rea guilty of con-
spiracy 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 testi-
mony; (2) the admissibility of transcripts and their ac-
companying 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 Identification Testimony
We review the district court’s admission of Officer
Toy’s voice identification testimony for abuse of discre-
Nos. 09-3591 & 10-1355 5

tion. United States v. Neighbors, 590 F.3d 485, 492 (7th
Cir. 2009).
Cruz-Rea argues that Officer Toy’s voice identification
testimony was improper because the government laid
insufficient foundation under Federal Rule of Evidence
901(b)(5). Rule 901(b)(5) provides that the identifica-
tion of a voice, “whether heard firsthand or through
mechanical or electronic transmissions or recording,”
may be established by opinion testimony that is
“based upon hearing the voice at any time under cir-
cumstances connecting it with the alleged speaker.” Fed.
R. Evid. 910(b)(5). We have consistently interpreted this
rule to require that the witness have only “minimal
familiarity” with the voice. Neighbors, 590 F.3d at 493;
United States v. Recendiz, 557 F.3d 511, 527 (7th Cir. 2009).
Once the court admits voice identity testimony,
opposing counsel may cast doubt upon the witness’
opinion through cross-examination, additional testi-
mony, or other evidence. See, e.g., United States v. Jones,
600 F.3d 847, 857-58 (7th Cir. 2010); Neighbors, 590 F.3d
at 494. It is ultimately the trier of fact’s responsi-
bility to determine the accuracy and reliability of the
identification testimony, and when reaching its deter-
mination, the trier of fact may consider circumstantial
evidence that tends to corroborate or contradict the
identification. Neighbors, 590 F.3d at 493-94; United States
v. Mansoori, 304 F.3d 635, 665 (7th Cir. 2002); United States
v. Degaglia, 913 F.2d 372, 376 (7th Cir. 1990).
We cannot say as a matter of law that the low bar of
minimal familiarity was not met in this case. Officer Toy
6 Nos. 09-3591 & 10-1355

testified that she became familiar with Cruz-Rea’s voice
by listening to an approximately fifteen second voice
exemplar at least fifty to sixty times. Officer Toy then
identified Cruz-Rea’s voice on twenty-four wiretapped
telephone conversations, including a conversation in
which Cruz-Rea offered to sell cocaine that was “good
for the frying pan” and a conversation in which Cruz-
Rea discussed his plan to ship cocaine to Indianapolis via
a car hauler carrying a Ford Explorer. Two different
witnesses testified to having these exact conversations
with Cruz-Rea on the telephone. Although neither of the
two witnesses offered any voice identification testi-
mony in court, their corroborating testimony tends to
establish the accuracy of Officer Toy’s voice identifica-
tion. Given the length of the voice exemplar and the
number of times that Officer Toy listened to the
exemplar, the district court did not abuse its discretion
in determining that the government had laid sufficient
foundation for Officer Toy’s voice identification testi-
mony under Rule 901(b)(5). See Neighbors, 590 F.3d at 493-
94. The accuracy and reliability of the testimony was a
question for the jury to weigh, and the court properly
admitted the corroborating testimony to aid the jury in
this role. Jones, 600 F.3d at 858. We stress, however,
that we arrive at this conclusion without the benefit of
empirical evidence on the reliability of voice identifica-
tions, and as previously cautioned by this court in Jones, we
can imagine a case in which the foundation for the voice
identification testimony was so flimsy as to be deemed
insufficient. Id.
Cruz-Rea also argues that Officer Toy’s voice iden-
tification was unhelpful and therefore inadmissable
Nos. 09-3591 & 10-1355 7

under Federal Rule of Evidence 701 because the jury
could have listened to the tapes and identified the voices
without the aid of Officer Toy’s opinion. Rule 701 states
that lay opinion is proper when it is “(a) rationally based
on the perception of the witness, (b) helpful to a clear
understanding of the witness’ testimony or the deter-
mination of a fact in issue, and (c) not based on
scientific, technical, or other specialized knowledge
within the scope of Rule 702.” Fed. R. Evid. 701 (emphasis
added). Although Rule 701 requires that testimony
be “helpful,” we have never held that testimony is unhelp-
ful merely because a jury might have the same opinion
as the testifying witness. See, e.g., United States v. Noel,
581 F.3d 490, 496 (7th Cir. 2009); United States v. Towns,
913 F.2d 434, 445 (7th Cir. 1990). Accordingly, we affirm
the district court’s ruling on this issue.

B. Transcripts of Wiretapped Telephone Conversa-
tions
Appellants challenge the district court’s decision to
(1) admit the government’s transcripts of twenty-four
wiretapped telephone conversations into evidence;
(2) allow the jury to use transcripts that identified the
alleged speakers by name; and (3) permit the jury to
view the transcripts during deliberation. We review
these rulings for abuse of discretion. United States v.
Breland, 356 F.3d 787, 793-95 (7th Cir. 2004). Appellants
also argue that the district court committed reversible
error when instructing the jury on the proper role of the
transcripts. We review the district court’s instructions
8 Nos. 09-3591 & 10-1355

de novo. United States v. Jefferson, 334 F.3d 670, 672 (7th
Cir. 2003).
Although district courts exercise wide discretion
when determining whether juries may use written tran-
scripts as aids while listening to audiotape recordings,
this court has noted that “[t]ranscripts of recorded con-
versations are a virtual necessity when the conversa-
tions take place in Spanish and are admitted into
evidence before an English-speaking jury.” Breland, 356
F.3d at 794; United States v. Nunez, 532 F.3d 645, 651 (7th
Cir. 2008). If the recorded conversations were played for
the jury (as was the case here), the district court has the
discretion to permit the use of transcripts during jury
deliberations. Breland, 356 F.3d at 794. The names of the
alleged speakers may be printed on the transcripts if a
person familiar with the voices testified as to the identity
of the speakers. Breland, 356 F.3d at 795. However, when
a district court admits a transcript into evidence, the
court must instruct the jury that the tape is the primary
evidence, that the transcript is given to assist the jury
in evaluating the recording, and “that if the jury deter-
mines that the transcript is in any respect incorrect, it
should disregard it to that extent and rely on its own
interpretation of the recording.” Nunez, 532 F.3d at 651.
We afford the district court substantial discretion with
respect to the precise wording of the instruction, remem-
bering that reversal is allowed only when the instruction
as a whole insufficiently informs the jury of the law.
United States v. Madoch, 149 F.3d 596, 599 (7th Cir. 1998);
United States v. Macey, 8 F.3d 462, 468 (7th Cir. 1993).
Nos. 09-3591 & 10-1355 9

There is nothing in the record or Appellants’ briefs to
suggest that the district court abused its discretion in
(1) admitting the transcripts at trial; (2) allowing the
jury to use transcripts that named the Appellants as
the speakers; and (3) permitting the jury to use the tran-
scripts during deliberations. Appellants’ briefs merely
appear to urge this court to reverse its longstanding
precedent. We decline the invitation to do so. However,
Appellants’ arguments about the proffered jury instruc-
tions require more attention.
Before these transcripts were admitted into evidence
and used by the jury, the district court gave the fol-
lowing oral instruction:
These transcripts, ladies and gentlemen, are pro-
vided to aid you in understanding the telephone
calls. These telephone calls for the most part are in
Spanish. I don’t understand them; I don’t think you
would understand them either. Even if you did have
some type of knowledge of the Spanish language,
you may have a different interpretation than others
on the jury who may know a little bit of Spanish or
may know none. Why we have interpreters in the
Court during these trials is so that you all will be
considering the same evidence. . . .
You make a determination regarding the credi-
bility and trustworthiness of the witness and the
translation. That’s your job to do. But the reason we
do have interpreters is so that we have one interpretation
so that you all consider that, and if each of you knew a
different version of the Spanish language, I would tell you
10 Nos. 09-3591 & 10-1355

and instruct you [that] you cannot consider your own
knowledge of Spanish; you must go with the translation. . . .
The evidence is the tapes, the audio, and the transla-
tion is to give you an assistance in understanding
the evidence as it comes from the audio.
Transcript of Jury Trial, Volume II, at 241-42, United States
v. Cruz-Rea, (2009) (No. 07 CR 41). Appellants contend
that the district court improperly instructed the jury to
(1) consider the translation, not the recording, as the
evidence; and (2) consider only the transcripts to the
extent that the transcripts and the recording differed. We
disagree. Appellants focus their attention on the portion
of the instruction that prohibits the jurors from con-
sidering their own knowledge of Spanish, but they
ignore the portion of the instruction clarifying the
purpose of the transcripts: “Even if you did have some
type of knowledge of the Spanish language, you may
have a different interpretation than others on the
jury . . . . Why we have interpreters in the Court during
these trials is so that you all will be considering the
same evidence.” To avoid any lingering confusion, the
judge clarified that “[t]he evidence is the tapes.” We find
that an instruction informing the jury to consider only
the transcripts before it, as opposed to fashioning its
own translation, cannot be read as an instruction to
treat the transcripts as the evidence. This instruction did
not misstate the law, mislead the jury, omit relevant
portions of the law, or unduly emphasize any part of the
evidence. See United States v. Jordan, 223 F.3d 676, 690
(7th Cir. 2000). Although the district court judge could
Nos. 09-3591 & 10-1355 11

have phrased the instruction differently, the instruc-
tion sufficiently informed the jury of the law and the
jury’s role. See Madoch, 149 F.3d at 599. We therefore
affirm the district court’s rulings on the transcripts and
their accompanying instructions.

C. Non-Hearsay Coconspirator Statements
We review the district court’s decision to admit non-
hearsay coconspirator statements under Federal Rule of
Evidence 801(d)(2)(E) for abuse of discretion. United
States v. Prieto, 549 F.3d 513, 523 (7th Cir. 2008).
A statement made by a member of a conspiracy is
admissible pursuant to Rule 801(d)(2)(E) if the govern-
ment proves by a preponderance of the evidence that
(1) a conspiracy existed; (2) the defendant and the
declarant were members of the conspiracy; and (3) the
statement was made during the course and in further-
ance of the conspiracy. Id. at 523. Only the third prong is
in dispute. In order to satisfy the “in furtherance” re-
quirement, the coconspirator’s statement “need not have
been exclusively, or even primarily, made to further
the conspiracy.” United States v. Singleton, 125 F.3d 1097,
1107 (7th Cir. 1997). The government has satisfied its
burden even if the statement is susceptible to alterna-
tive interpretations, so long as “some reasonable basis
exists for concluding that the statement furthered the
conspiracy.” Garlington v. O’Leary, 879 F.2d 277, 284 (7th
Cir. 1989). This court has repeatedly held that a state-
ment attempting to recruit new members to the
conspiracy is “in furtherance” of the conspiracy. See, e.g.,
12 Nos. 09-3591 & 10-1355

United States v. Haynes, 582 F.3d 686, 705 (7th Cir. 2009);
United States v. Price, 516 F.3d 597, 607 (7th Cir. 2008);
United States v. Skidmore, 254 F.3d 635, 638 (7th Cir. 2001).
The government called Barragan as a witness and
elicited testimony about statements that Cruz-Rea made
to Franco (Barragan’s relative). Without question, Cruz-
Rea and Franco were members of a conspiracy to sell
cocaine and Cruz-Rea attempted to recruit Barragan
into the conspiracy by offering to advance Barragan
one kilogram of cocaine for a later payment of $20,000.
Appellants concede that this attempted recruitment
was “in furtherance” of the conspiracy. See Haynes, 582
F.3d at 705. After the attempted recruitment, Franco and
Barragan had many conversations about the cocaine
conspiracy. Franco disclosed that his cocaine supplier
was Cruz-Rea, that Cruz-Rea provided the cocaine on
consignment, and that Franco rented apartments in
Indianapolis for Cruz-Rea. Although Barragan believes
Franco’s statements were made, at least in part, because
Franco was a good friend, it is also possible that Franco
made these statements in an attempt to entice Barragan
into the cocaine conspiracy. See Haynes, 582 F.3d at 705
(finding that discussions of prior criminal acts were
arguably an attempt to recruit a new member into a
conspiracy). The trial court found that Franco’s statements
were in furtherance of the conspiracy because they were
arguably made to recruit a new member into the conspir-
acy; in doing so, we cannot say that the court abused its
discretion. See id. at 705.
Nos. 09-3591 & 10-1355 13

D. Cruz-Rea’s Offense Level Increase
We apply a clearly erroneous standard to factual
findings made during the district court’s assessment of
the United States Sentencing Guidelines’ offense levels.
United States v. Wade, 114 F.3d 103, 105 (7th Cir. 1997).
The district court’s findings are clearly erroneous
only when, “after considering all of the evidence, the
reviewing court is left with the definite and firm convic-
tion that a mistake has been made.” United States v.
Wyatt, 102 F.3d 241, 246 (7th Cir. 1996). Thus, when a
district court chooses between two permissible in-
ferences from the evidence, the factual findings cannot
have been clearly erroneous. Wyatt, 102 F.3d at 246.
Stated otherwise, “[t]he task on appeal is not to see
whether there is any evidence that might undercut the
district court’s finding; it is to see whether there is any
evidence in the record to support the finding.” Wade,
114 F.3d at 105.
The Sentencing Guidelines advise courts to increase
the offense level by two when the offense in question
involves the possession of a dangerous weapon, in-
cluding a firearm. U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2008). A comment to these Guidelines
explains that “[t]he adjustment should be applied if the
weapon was present, unless it is clearly improbable that
the weapon was connected with the offense.” Id. at cmt.
n.3 (emphasis added). Here, authorities searched Cruz-
Rea’s residences and found two firearms in the same
location as cocaine and distribution materials. Despite
Cruz-Rea’s assertions that he planned to sell the guns,
14 Nos. 09-3591 & 10-1355

it was not “clearly improbable” that they were used
during Cruz-Rea’s drug transactions. The district court’s
choice between the two alternative explanations for
the firearms was a choice between two permissible in-
ferences based on the evidence. We therefore cannot
say with definite and firm conviction that a mistake has
been made. Accordingly, we find no clear error with the
district court’s factual findings and we affirm the
offense level increase.

E. Suppression of Evidence Recovered from a
Vehicle Search
We review the district court’s determination of probable
cause de novo and its factual findings for clear error.
United States v. Washburn, 383 F.3d 638, 642 (7th Cir. 2004).
A warrantless search is per se unreasonable under the
Fourth Amendment, subject to a few well-established
exceptions. Arizona v. Gant, 129 S. Ct. 1710, 1716 (7th Cir.
2009). Under the automobile exception to the warrant
requirement, a law enforcement officer may conduct a
warrantless search of a vehicle when, based on the
totality of the circumstances, he has probable cause to
believe that the vehicle contains contraband or evidence
of a crime. United States v. Zahursky, 580 F.3d 515, 521 (7th
Cir. 2009). Probable cause requires only a probability,
rather than an absolute certainty, that contraband
or evidence will be found. Id. When making the
probable cause determination, law enforcement officers
are permitted to draw reasonable inferences from
their training and experience. Id. However, when a
Nos. 09-3591 & 10-1355 15

finding of probable cause is supported by information
from a confidential informant, the sufficiency of the
probable cause determination hinges on the confidential
informant’s reliability, veracity, and basis of knowledge.
United States v. Olson, 408 F.3d 366, 370 (7th Cir. 2005). In
assessing the credibility of an informant, we consider
whether the informant (1) possessed firsthand knowledge;
(2) provided sufficient details to law enforcement;
(3) relayed information that was later corroborated; and
(4) testified at a probable cause hearing. Id. No single
factor is dispositive, and “a deficiency in one factor may
be compensated for by a strong showing in another or
by some other indication of reliability.” United States v.
Brack, 188 F.3d 748, 756 (7th Cir. 1999). Additionally, we
consider the informant’s admission of culpability as an
indication of veracity. United States v. Mitten, 592 F.3d
767, 774 (7th Cir. 2010), quoting United States v. Harris,
403 U.S. 573, 583, (1971) (“Admissions of crime . . . carry
their own indicia of credibility—sufficient at least to
support a finding of probable cause to search.”).
Trooper Bowles pulled over the Ford Focus after
noticing that it did not have the required license plate
light. The parties do not dispute that Trooper Bowles
possessed sufficient reasonable suspicion under Terry
to stop the vehicle. See Terry v. Ohio, 392 U.S. 1 (1968).
The parties only dispute whether Trooper Bowles
had probable cause to search the vehicle after the
original Terry stop had concluded. Appellants argue
that the informant’s information did not support
probable cause because the informant was a drug
addict and convicted felon who had never provided
16 Nos. 09-3591 & 10-1355

information to law enforcement before. To support their
argument, Appellants highlight a number of details that
the informant could not provide. However, instead of
focusing on the details that the informant failed to
disclose, we focus on the information that the informant
actually provided.
Immediately after his arrest, the informant admitted
his own culpability and told police that Cruz-Rea was
going to use a Ford Focus to transport a shipment of
cocaine from Utah to Indianapolis. Although the
informant could not confirm that the cocaine would be
concealed inside gift-wrapped packages, he stated that
Cruz-Rea had previously shipped cocaine under that
disguise. And despite being unable to confirm the
exact date the Ford Focus would depart for Indianapolis,
the informant revealed that the vehicle would leave
within one or two days. The informant also told police
that Cruz-Rea used a post office box that was listed
under the informant’s name. Prior to stopping the Ford
Focus, authorities corroborated all of the informant’s
information. Upon pulling over the Ford Focus, Trooper
Bowles immediately noticed the gift-wrapped packages
in the backseat. His suspicions were further aroused
when the passenger and driver of the Ford Focus told
conflicting stories about where they were headed. We
find that the informant’s admission of culpability, the
corroboration of the informant’s story, and the driver’s
and passenger’s conflicting stories provided Trooper
Bowles with probable cause to search the vehicle. We
therefore affirm the district court’s determination of
Nos. 09-3591 & 10-1355 17

probable cause, finding the automobile exception to the
warrant requirement satisfied.

III. CONCLUSION
For the reasons discussed above, we find no error
with the district court’s legal conclusions or findings
of fact. We therefore A FFIRM the convictions and sen-
tences of Cruz-Rea and Garcia-Rea.

11-17-10