[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 03, 2002
THOMAS K. KAHN
No. 98-5458 CLERK
D.C. Docket No. 95-00481-CR-NCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS H. CANO,
DAVID MATOS,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Florida
(May 3, 2002)
Before TJOFLAT and DUBINA, Circuit Judges, and SHAPIRO*, District Judge.
__________________________
*Honorable Norma L. Shapiro, U.S. District Judge, Eastern District of Pennsylvania, sitting by
designation.
TJOFLAT, Circuit Judge:
On August 27, 1997, a Southern District of Florida grand jury returned a
seventy-six count indictment against appellants, Luis Cano and David Matos, and
eight others. The indictment was the culmination of a lengthy investigation into
the operation of a nationwide cocaine trafficking and money laundering network.1
1
This was the fourth superceding indictment the grand jury returned against appellants.
For convenience, we refer to it as the indictment. Appellant Cano was charged as follows:
Count One: knowingly and intentionally operating a continuing criminal enterprise, from
June, 1987 to October 1, 1996, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 848.
Count Two: knowingly and willfully conspiring to posses with intent to distribute a
Schedule II controlled substance (cocaine), from February, 1987 to October 1, 1996, in
violation of 21 U.S.C. §§ 841(a)(1) and 846.
Count Three: knowingly and willfully possessing with intent to distribute a schedule II
controlled substance (cocaine), from March, 1995 to May 27, 1995, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count Four: knowingly and willfully possessing with intent to distribute a schedule II
controlled substance (cocaine), from July 1, 1993 to July 20, 1993, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count Five: knowingly and willfully possessing with intent to distribute a schedule II
controlled substance (cocaine), from August 3, 1993 to August 28, 1993, in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count Six: knowingly and willfully possessing with intent to distribute a schedule II
controlled substance (cocaine), from September 7, 1993, to September 18, 1993, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count Seven: knowingly and willfully possessing with intent to distribute a schedule II
controlled substance (cocaine), from December, 1, 1993 to December 13, 1993, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count Eight: knowingly and willfully possessing with intent to distribute a schedule II
controlled substance (cocaine), from February, 1, 1994 to February 14, 1994, in violation
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Cano was charged in all seventy-six counts, and Matos in nine counts. A jury
convicted Cano on sixty-nine counts, Counts 1 to 26, 28-31, 38-76; Matos was
convicted on all nine counts in which he was charged, Counts 2, 4-10, and 12.2
The jury based its verdicts, in part, on the testimony of several other members of
Count Nine: knowingly and willfully possessing with intent to distribute a schedule II
controlled substance (cocaine), from March, 1, 1994 to March 31, 1994, in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count Ten: knowingly and willfully possessing with intent to distribute a schedule II
controlled substance (cocaine), from April, 10, 1994 to April 28, 1994, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count Eleven: knowingly and willfully possessing with intent to distribute a schedule II
controlled substance (cocaine), from October, 1 1994 to November 30, 1994, in violation
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count Twelve: knowingly and willfully possessing with intent to distribute a schedule II
controlled substance (cocaine), from January, 1 1995 to January 31, 1995, in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count Thirteen: knowingly and willfully possessing with intent to distribute a schedule I
controlled substance (marijuana), from March, 1 1995 to May 31, 1995, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count Fourteen: knowingly and willfully conducting and attempting to conduct financial
transactions involving interstate and foreign commerce which the transactions involved
the proceeds of a specified unlawful activity, from May, 1989 to October, 1, 1996, in
violation of 18 U.S.C. § 1956(a)(1)(B)(i) and 18 U.S.C. § 1956(h).
Counts Fifteen to Seventy-Six: sixty-two counts of money laundering, in violation of 18
U.S.C. § 1956(a)(1)(B)(i) and (2).
Appellant Matos was charged with nine counts: Count Two, Counts Four through Ten,
and Count Twelve.
2
By the time appellants’ case went to trial, three co-defendants had pled guilty, and five
were awaiting trial.
3
the network.3
Cano was sentenced to a mandatory life prison term on Count 1, and to
concurrent life sentences on Counts 2-13. Additionally, he received a concurrent
term of 240 months’ imprisonment on Counts 14-26, 28-31, and 38-76. Matos
received on each count a concurrent term of 235 months’ imprisonment. Cano and
Matos now appeal. They seek new trials or, alternatively, re-sentencing on several
grounds.4 Only two grounds merit discussion: (1) whether the district court abused
3
Some of these witnesses testified after pleading guilty to charges contained in separate
indictments; a few testified under letter grants of immunity.
4
Cano claims as follows: (1) Counts 2-13 fail to state an offense; (2) the evidence was
insufficient both to establish venue and to convict on Counts 3-6, 8-10, & 12; (3) the district
court abused its discretion in permitting Detective Donnelly to “interpret” the “money house”
ledgers, and Schery’s date book and phone book; (4) misconduct of the prosecutor denied him a
fair trial, to-wit: (a) vouching for the credibility of prosecution witnesses on direct examination
and during closing argument, (b) staging a “demonstration” in closing argument based on
material not in evidence, (c) attempting to have Ruben Carillo refresh his recollection with a
ledger maintained by a Colombian, “J.J.,” one of Ruben Carillo’s lieutenants, and (d) attempting
to have Burnbaum recite the facts underlying Wilfredo Schery’s previous conviction and to use
the facts as substantive evidence; (5) the district court committed plain error in failing to instruct
the jury that, to convict the defendant on Count 1, it had to find unanimously that the defendant
committed a continuing series of at least three violations of federal narcotics laws; (6) the district
court committed plain error under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed2d 435 (2000), in imposing life sentences under 21 U.S.C. § 841(b)(1)(A) on Counts 2-13
because the drug quantities giving rise to the sentences were not alleged in the indictment and
found by the jury beyond a reasonable doubt; (7) the court committed plain error under
Apprendi,
in imposing a life sentence on Count 1, the 21 U.S.C. § 848 offense, because the elements
848(b), which triggered the life sentence, were not alleged in the indictment and found by the
jury beyond a reasonable doubt; and, (8) the court committed plain error in failing to group
(under the Sentencing Guidelines) the drug-related counts with the money laundering counts in
fashioning Cano’s sentences.
Appellant Matos claims that: (1) the evidence was insufficient to convict on Counts 4-8;
4
its discretion in permitting a police detective to interpret drug ledgers, a personal
phone book and date book seized by New York City Police Department (“NYPD”)
detectives while conducting searches of the network’s facilities in the New York
City vicinity; and (2) whether the prosecutor impermissibly vouched for the
credibility of government witnesses. We resolve these issues in favor of the
Government. We notice plain error on a third issue: whether the record contains
any evidence to support Cano’s conviction on Count 13, possession with intent to
distribute marijuana.
I.
In 1989, Cano and Ruben Carillo, both experienced cocaine traffickers,
began distributing large amounts of cocaine. Carillo’s sister, Amanda, who had
become Cano’s mistress, introduced the two men. As it turned out, unbeknownst
to them, Cano and Carillo had previously been involved together in the distribution
of cocaine in New York City; Cano had been supplying a middleman with multi-
(2) as in Cano’s appeal, the evidence failed to establish venue for Counts 4-6, 8-10, & 12;
(3) the court committed plain error under Apprendi, in imposing a term of supervised release in
excess of the statutory maximum because the indictment failed to allege drug quantity and the
quantity issue was not submitted to the jury. In addition to these claims of error, Matos adopts
Cano’s points (3) and (4).
With the exception of Cano’s claims 3 and 4(a) (both of which Matos has adopted), which
we address in the text infra, none of appellants’ claims of error has merit or warrants discussion.
5
kilograms of cocaine, often in excess of 100 kilos, and the middleman, in turn, had
been allocating portions of the shipments to Carillo.5 When the middleman learned
that Cano and Carillo had become aware of their respective roles in the
distribution network, he quit supplying Carillo. Carillo solved this supply problem
by arranging for a Colombian source, “Potato,” to supply him and Cano with
cocaine.
New York City was the primary destination for Cano’s shipments. Cano
maintained two houses in the New York City vicinity: a “money house” where all
the cash was held and the bookkeeping for the operation took place, and a “stash
house” where the cocaine was stored. Claudia Valencia was the operation’s
bookkeeper and lived and worked in the “money house;” she prepared the ledgers,
which were eventually seized by the police during a search and introduced into
evidence at trial.6 Cano and Carillo had a family reside in the “stash house” in an
effort to curb any suspicion about the activities taking place there.
Ruben Carillo supervised the distribution of drugs in the New York City
area by telephone from Colombia, where he stayed from 1991 to 1994 to secure the
needed cocaine supply. In effect, Carillo was the vice president of Cano’s
5
Ruben Carillo was indicted in a separate case, pled guilty, and became the principal
prosecution witness at appellants’ trial.
6
We describe the ledgers at note 9, infra.
6
operation, with Cano serving as president. Wilfredo Schery, Cano’s brother-in-
law, supervised the network’s operations in the New York area and reported
directly to Carillo.7
In May 1990, Cano received a 750 kilogram shipment of cocaine from
Potato; it was flown to an airstrip near Houston, Texas. Cano, Matos and others
met the airplane. The cocaine was off-loaded, taken to a stash house, and
subsequently transported by truck to New York City. From the sales that took
place there, Cano reaped over $6 million; Carillo received roughly $1.5 million.
From 1992 to April 1994, Cano arranged for regular biweekly shipments –
containing 300 to 1,000 kilograms – to New York City. The shipments were made
by O.B. Industries, a company Cano had acquired to provide cover for his illicit
activities, from its elastics factory in Miami and its facilities in Los Angeles and
Texas. The O.B. Industries’ facilities in these locations served as Cano’s
distribution centers;8 the cocaine was transported to New York City within pallets
of elastics. For every shipment to New York City, Cano received $1,000 per
kilogram. The shipments sent from the factory in Miami involved over 10,000
kilograms.
7
Schery also kept Cano informed.
8
O.B. Industries continued to operate its elastics factory after Cano acquired the
company. Cano used the company as a front to hide his cocaine distribution.
7
Meanwhile, the NYPD had maintained an active wiretap on Schery’s
cellular telephone in the New York City area, and both Cano and Matos were
recorded discussing their cocaine trafficking business. The wiretap was supervised
by Detective Eugene Donnelly. On April 5, 1994, the NYPD arrested Schery and
Valencia and seized, at the “stash house,” 297 kilograms of cocaine, and, at the
“money house,” over $1.2 million and two drug ledgers that were introduced into
evidence at appellants’ trial.9 A search of Schery’s residence yielded $36,000 in
cash, one kilogram of cocaine, and several incriminating documents, all relating to
drug transactions. Among these documents were “business cards,” including a
9
These were the same ledgers kept by Claudia Valencia, the bookkeeper. They were
admitted without objection; thus, their admission is not an issue on appeal. The ledgers,
containing several pages, cover the periods “February 1 through April 5” and “July 13 through
February 4.” The undisputed evidence is that the first period was in 1994; the second was in
1994-95. The ledger sheet for February 1-24, 1994, reading from left to right, contains columns
with the following headings:
“February” “Vienen” “Macua” “Gallo” “Homie” “Wolf” “Nicky” “Kiko” “Family”
“Recibido” “Entregado” “Balance”
Under the headings “February,” “Vienen,” “Macua,” and “Balance” are the following
entries for “Macua” on February 1:
“Feb 01” “Pago Telefonos” [under “Vienen”] “1567 ”[under “Macua”] ---------------------
----------- “824571 ”[under “Balance”]
“01 ”“Rent apt. city” [under “Vienen”] “1000 ”[under “Macua”] -----------------------------
------------ “823571 ”[under “Balance”]
According to the testimony of several prosecution witnesses, including Ruben Carillo,
“Macua” was Ruben Carillo; “Gallo” was Cano.
8
card for O.B. Industries, “receipts,” and Schery’s “date book”10 and “phone
book.”11
Notwithstanding the arrests in New York, Cano kept the network
functioning. Among other things, he had Matos spend part of his time in Los
Angeles, receiving cocaine at the O.B. Industries facility there and shipping it to
New York City. For his efforts, Matos received $100 for every kilogram shipped.
10
The “date book” and the “phone book” are different parts of the same book. However,
for convenience we refer to them separately because the prosecution introduced them into
evidence as separate exhibits.
The “date book” is a calendar in book form. The pages of the book are divided into
blocks representing the days of the month. The blocks are large enough to accommodate several
notations. A block for a typical day includes one or more of the following notations: the names
of persons who have purchased cocaine from the Cano organization, a code in hieroglyphics
representing numbers regarding quantity, money owed or received, or phone numbers.
11
The phone book is a “Day Runner” with lettered tabs in alphabetical order separating
groups of pages. Each tab contains two letters, e.g., AB, CD. On the page to which the tab is
attached, ample space is provided to record names, phone numbers, and notations. A typical
entry includes the following: a name followed by hieroglyphic numbers (as in the “date book”),
and B or P with hieroglyphics. Two of such entries were followed by a number in parenthesis,
e.g., (109).
Following the last tab, XYZ, there is a section with lined pages with the heading in the
upper left hand corner of each page entitled “NOTES.” The words “DIARY/IDEAS” appears
directly beneath NOTES. Opposite NOTES to the right is a rectangular box containing this
entry: “Subject ________________.” A handwritten entry appears after “Subject” and over the
line in each box, e.g., “Company,” “Homey,” “Personal,” “Personal bills,” “House # 1,” and
“House # 2.” On the pages in which “Company” is the subject appear dated hand notes. The
dates are in Arabic numerals. Hieroglyphics appear under names written opposite the dates. For
example, opposite “12/13” appears “Hernan de Felipe # 54 (50).” Under this entry appear 10
hieroglyphics, the first three of which are closed by a parenthesis, ) . A line beneath that line also
has ten hieroglyphics arranged in the same fashion.
9
In January 1995, with Carillo back in the United States, Cano took on the
additional responsibility of transporting his supplier’s cocaine from Colombia to
the United States. For undertaking this task, he took forty percent in kind of each
shipment. In the first month, his workers smuggled 1,100 kilograms of cocaine
into Texas from Mexico. His share, 440 kilograms, yielded $7 million. Texas law
enforcement officials intercepted and seized the next shipment from Mexico, 2,600
pounds.
In April 1995, Cano’s network began to unravel. That month, Cano shipped
150 kilograms of cocaine to Chicago. One of his workers there, Osvaldo Marcial,
stored the cocaine. A few days later, Marcial was arrested and jailed on unrelated
charges. Cano learned of the arrest but refrained from contacting Marcial at the jail
– to determine where he had stashed the cocaine – for fear of being overheard.
Instead, he decided to have his attorney, Michael Burnbaum, posing as Marcial’s
lawyer, visit Marcial at the jail. Burnbaum could have a private conversation with
Marcial and find out where he had stored the cocaine. Cano had confidence in
Burnbaum’s ability to do this because Burnbaum had been an Assistant United
States Attorney.12 Unbeknownst to Burnbaum (and Cano), however, Marcial was
12
Burnbaum had been an assistant in the United States Attorney’s office in the Southern
District of Florida and had handled scores of drug cases.
10
cooperating with law enforcement and, after Burnbaum met him at the jail, he
reported the meeting to the authorities. The intelligence Marcial provided law
enforcement led to several arrests – including the arrests of Cano, Matos,
Burnbaum, and Ruben Carillo.
II.
A.
Appellants contend that the district court abused its discretion in permitting
Detective Donnelly, the NYPD detective in charge of the case,13 to decipher, over
their objection, what Donnelly and counsel referred to as “hieroglyphics” –
symbols contained in the phone book previously introduced into evidence along
with the ledgers and date book we have already described.14 Appellants objected to
such deciphering on two grounds: (1) that, under Rule 702 of the Federal Rules of
Evidence,15 the deciphering constituted “expert” testimony by a witness who had
13
Donnelly was the case agent. Among other things, he supervised the conduct of the
several wiretaps placed on the telephones used by the conspirators, and ran down the tips the
monitored conversations yielded.
14
See supra notes 9, 10 and 11.
15
Rule 702, Testimony by Experts, states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the witness has
11
not been qualified as an expert; and (2) that the prosecutor had not notified them
that Donnelly would be called as an expert witness or provided them with his
qualifications and a summary of his testimony, as required by Rule 16 of the
Federal Rules of Criminal Procedure.16 The prosecutor responded to appellants’
objection by representing that Donnelly was not being called as an expert; all he
was going to do was decipher the hieroglyphics – by correlating the ten digit
telephone numbers of members of the conspiracy (obtained from the wiretaps) with
the ten hieroglyphic symbols opposite their names in the phone book. On the basis
of the prosecutor’s representation, the court overruled appellants’ objection,
concluding that Donnelly would not be testifying as an expert witness.
After the court ruled, Donnelly testified as follows. First, he explained how
applied the principles and methods reliably to the facts of the case.
16
Rule 16, Discovery and Inspection, states:
(a) Governmental Disclosure of Evidence.
(1) Information Subject to Disclosure.
(E) Expert Witnesses. At the defendant's request, the government shall
disclose to the defendant a written summary of testimony the government
intends to use under Rules 702, 703, or 705 of the Federal Rules of
Evidence during its case in chief at trial. If the government requests
discovery under subdivision (b)(1)(C)(ii) of this rule and the defendant
complies, the government shall, at the defendant's request, disclose to the
defendant a written summary of testimony the government intends to use
under Rules 702, 703, or 705 as evidence at trial on the issue of the
defendant's mental condition. The summary provided under this
subdivision shall describe the witnesses' opinions, the bases and the
reasons for those opinions, and the witnesses' qualifications.
12
he deciphered the hieroglyphics. Using wiretap information, he selected the
telephone numbers associated with two of the members of the conspiracy, Homey
and MiLagro, whose names appeared in the phone book.17 Their telephone
numbers had ten digits. Looking at the phone book, he found the conspirator’s
name and aligned the ten digits (contained in the conspirator’s phone number) with
the hieroglyphic symbols appearing opposite the name; then, going from left to
right, he assigned an arabic number to each symbol.18 When he compared the
symbols and phone numbers for these conspirators, he discovered that each symbol
represented a specific arabic numeral. In demonstrating how he deciphered the
hieroglyphics,19 Donnelly used a poster board the prosecutor’s office had
prepared.20 The board had a line of ten numbers, zero to nine, going left to right.
A hieroglyphic symbol, representing a specific arabic numeral, appeared above
17
Homey was identified by Ruben Carillo as the network’s best customer in the New
York City area. MiLagro was identified by Donnelly as Milagro Tavares, a female who resided
in the same geographic area. A conversation in which she had been a party had been intercepted
during one of the wiretaps. Homey and Milagro were unindicted co-conspirators.
18
Consider hypothetically the phone number 017 334-5651. If a delta ,“>,” symbol was
the first hieroglyphic (going from left to right), then the delta represented the number “0”.
19
At times, counsel referred to Donnelly’s deciphering as “breaking the code.”
20
Defense counsel objected to the poster board being shown to the jury on the ground
that the board had been “prepared in anticipation of litigation [i.e., appellants’ trial],” meaning
that, because someone in the prosecutor’s office had prepared it beforehand, it was therefore
inadmissible. The court overruled the objection, and appellants do not challenge the ruling here.
13
each numeral.
We agree with the district court that Detective Donnelly’s deciphering of the
hieroglyphics was not based on “scientific, technical or otherwise specialized
knowledge.” Therefore, the deciphering did not constitute expert testimony within
the meaning of Rule 702, and the court did not abuse its discretion in overruling
appellants’ Rule 702 objection.21 We acknowledge that some courts have
considered the interpretation of drug ledgers to constitute expert testimony, but in
these cases the expert used previously acquired experience or specialized
knowledge to interpret the ledger’s notations.22 See e.g., United States v. Ortega,
21
During his appearance on the witness stand, Donnelly did testify about the NYPD’s
investigation of Cano’s network – the wiretaps; the surveillance of network activities; and the
searches of the “money house,” the “stash house,” and Schery’s apartment, which yielded the
ledgers and Schery’s phone book and date book, and which were introduced into evidence. This
testimony, however, played no role in the hieroglyphics deciphering appellants are challenging.
22
Appellants cite the following cases to argue that “Donnelly’s deciphering of the
telephone codes, explanations of the roles various persons played, and interpretations of the
ledgers fall squarely within the domain of what is generally regarded as expert testimony by a
law enforcement officer: United States v. Chastain,198 F.3d 1338, 1348 (11th Cir. 1999); United
States v. Ortega, 150 F.3d 937, 943 (8th Cir. 1998); United States v. Sanchez-Galvez, 33 F.3d
829, 832 (7th Cir. 1994); United States v. Tejada, 886 F.2d 483, 486-87 (1st Cir. 1989); United
States v. Carmona, 858 F.2d 66, 69 (2d Cir. 1988).”
The expert testimony of the United States Customs Agent in Chastain did not involve any
interpretations of notebook entries. Instead, the agent testified about “general techniques of drug
smugglers” and certain alterations that made an airplane more suitable for smuggling. Chastain,
198 F.3d at 1349. The testimony in Sanchez-Galvez involved generalized expert testimony on
the roles and modus operandi of drug dealing operations. Sanchez-Galvez, 33 F.3d at 832. The
law enforcement expert in Tejada, as indicated in the above text, testified as to codes found
within a notebook based upon his experience and familiarity with the language of the cocaine
community. Tejada, 886 F.2d at 486-87. Finally, in Carmona, a detective testified as an expert
as to the meaning of the entries in a notebook. Although the court’s opinion does not discuss his
14
150 F.3d 937, 943-44 (2d Cir. 1998) (allowing expert testimony of law
enforcement agent as to meaning of coded language based on experience); United
States v. Tejada, 886 F.2d 483, 486 (1st Cir. 1989) (finding admissible the expert
testimony of agents who used their experience with the “lexicon of the cocaine
community” to interpret coded words within a notebook). Unlike the witnesses in
these cases, Donnelly did not testify as to general drug trafficking techniques,
“code” or “slang” words, or use his experience as a narcotics detective to decipher
the “hieroglyphics.” Donnelly simply took telephone numbers and names from the
experience, it directly cites United States v. Nersesian, 824 F.2d 1294, 1307-09 (2d Cir. 1987).
Carmona, 858 F.2d at 69. In Nersesian, the detective testified that drug slang in wiretap
conversations was wholly based upon his experience:
[H]e pointed out that caution, pauses, excessive use of pronouns, and the participants'
apparent knowledge of what they were talking about were indicia that could be relied
upon in assessing whether a conversation was drug-related. He also identified certain key
words or phrases used in certain intercepted conversations as narcotics-related. For
instance, he testified that, depending on the context, words such as cheese, land, room,
house, car, horse, and stick-shift, could carry a hidden meaning related to narcotics.
Id. at 1307.
In addition to the fact that Donnelly did not testify based on his experience, we note that
our court has recently held that expert and lay testimony, under the Federal Rules of Evidence,
are not mutually exclusive (at least with the pre-amendment Rule 701; Rule 701 was amended in
2000 by adding 701(c) to eliminate confusion between Rules 701 and 702). In other words, we
stated that lay opinion testimony is not precluded simply because an expert could testify to the
same subject at issue. See United States v. Novation, 271 F.3d 968, 1008 (11th Cir. 2001). The
defendants in Novation objected to law enforcement agents testifying about the meaning of
certain code in recorded conversations, based, in part, on their experience. Id. at 1007. The
court rejected the “erroneous assumption...that because an expert could provide the type of
testimony at issue, a lay witness cannot. Our case law is squarely to the contrary.” Id. at 1008.
15
wiretaps and compared them to the same names in Schery’s phone book and to the
hieroglyphics appearing next to those names. No scientific, technical or
specialized knowledge was required to accomplish this. In a sense, Donnelly did
precisely what the prosecutor invited the jury to do in closing argument; the jurors
were asked to perform the same exercise Donnelly had carried out in their presence
and break the code themselves.
B.
Appellants contend that, if Donnelly’s testimony was not that of an expert, it
constituted the opinion testimony of a lay witness but failed to satisfy one of the
criteria of Rule 701 of the Federal Rules of Evidence, Opinion Testimony by Lay
Witnesses. The version of Rule 701 in effect at the time of appellants’ trial stated:
If the witness is not testifying as an expert, the witness’
testimony in the form of opinions or inferences is limited
to those opinions or inferences which are (a) rationally
based on the perception of the witness and (b) helpful to
a clear understanding of the witness’ testimony or the
determination of a fact in issue.
Fed. R. Evid. 701 (amended 2000).
The unsatisfied criterion, appellants say, was the requirement that the witness’
testimony be “based on the perception of the witness.” Fed. R. Evid. 701(a).
Appellants are right; in deciphering the hieroglyphics, Donnelly did nothing more
than call the jurors attention to the fact that the hieroglyphics appearing next to the
16
names of two of the conspirators, Homey and MiLagro, in Schery’s phone book
represented their telephone numbers. For example,“>” represented the number
“0.” Nothing in the inferences Donnelly drew was based on his perception; rather,
the inferences were based on facts already in evidence. As we have observed,
Donnelly merely delivered a jury argument from the witness stand.
The problem appellants face is that they did not object to Donnelly’s
deciphering on this Rule 701 ground.23 We therefore review the court’s decision to
23
Appellants face the same failure-to-object problem concerning Donnelly’s use of the
hieroglyphics and arabic numerals to infer that many of the entries in Schery’s phone book and
date book represented cocaine transactions. After Donnelly deciphered the hieroglyphics, the
prosecutor asked him to explain the meaning of the asterisks and boxes containing an “X” next
to arabic numbers or hieroglyphic symbols in the “Notes” section of Schery’s phone book and
date book. Donnelly said that the arabic numbers or symbols next to the asterisks represented
quantities of cocaine; the boxes next to symbols represented monies received or owed for sales
of cocaine. On cross-examination, when faced with apparent contradictions in his testimony,
Donnelly acknowledged the inconsistencies (admitting, for instance, that some asterisks
represented money, not cocaine) but explained that Schery had erred in making some of the
entries in the books. In other words, Donnelly was telling the jury what Schery actually intended
to do. Although Donnelly’s responses amounted to rank speculation (about Schery’s state of
mind and whether the asterisks and boxes concerned cocaine or money), appellants did not
object. Instead, they have complained for the first time on appeal, contending that this testimony
constituted expert testimony under Fed. R. Evid. 702, and, alternatively, that the testimony did
not satisfy the “perception” criterion of Fed. R. Evid. 701(a). We review the admission of lay
testimony for abuse of discretion. See United States v. Novation, 271 F.3d 968, 1009 (11th Cir.
2001).
Had appellants objected at the time the prosecutor elicited the testimony, the court would
have sustained the objection, since it was not a matter within Donnelly’s expertise – and, thus,
did not amount to expert testimony – and, moreover, constituted pure speculation. Donnelly’s
responses were absolutely harmless, however. The jury knew that Schery’s “business” was
distributing cocaine; hence, that the asterisks and boxes dealt with cocaine and money was
obvious. And other evidence in the case well-established the amounts of cocaine being
trafficked and the money the trafficking was bringing in. Assuming that the district court should
17
allow the testimony under a plain error standard. We may vacate appellants’
convictions if (1) there was “error,” (2) which was “plain,” (3) and which affected
appellants’ “substantial rights.” Johnson v. United States, 520 U.S. 461, 466-67,
117 S.Ct. 1544, 1548-49, 137 L.Ed.2d 718 (1997). If these three conditions are
met, we may exercise our discretion and remedy the error if the error “seriously
affect[s] the fairness, integrity, or public reputation of [the] judicial proceedings.”
Id. at 467, 117 S.Ct. At 1549 (quoting United States v. Olano, 507 U.S. 725, 732,
113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993)). In this case, because the evidence
of appellants’ guilt was overwhelming, the error did not affect appellants’
substantial rights, and we provide no remedy.
III.
Appellants next aver that prosecutors vouched for the credibility of six
government witnesses while examining the witnesses on direct and on redirect, and
while giving their closing argument. The record hardly contains an objection.24 In
have struck Donnelly’s speculative testimony – because Donnelly lacked (1) the expertise to
render his (speculative) opinions under Rule 702, (2) the required “perception” under Rule
701(a), and (3) his speculations lacked any probative value – error did occur and the error was
plain, so as to render the court’s entertainment of Donnelly’s statements an abuse of discretion.
We conclude, however, that Donnelly’s statements did not affect appellants’ substantial rights.
24
In his brief, Cano states that only three objections were lodged on his behalf. Matos
concedes that no objections were made by his counsel. One of Cano’s objections was during the
testimony of Osvaldo Marcial; two took place during the testimony of Burnbaum. No objections
18
fact, counsel for Matos never objected to the alleged vouching. Despite the paucity
of objections in Cano’s case and the total absence of objections in Matos’ case,
however, we give appellants the benefit of the doubt and afford them plenary
review. See United States v. Diaz, 190 F.3d 1247, 1254 (11th Cir. 1999) (stating
that plenary review is proper because vouching is a mixed question of law and
fact).
Five of the six witnesses appellants identify were accomplices who testified
for the prosecution after having pled guilty to a charge (in the instant case or a
separate case) or under a letter grant of immunity.25 They were Ruben Carillo,
Tania Mohler (Ruben’s wife), Michael Burnbaum, Amanda Carillo (Cano’s
mistress and Carillo’s sister), and Michael Stricklin (Cano’s worker). The sixth
were made throughout the testimony of Ruben Carillo, Tania Mohler, Amanda Carillo, and
Michael Stricklin.
One of Cano’s objections, made during Burnbaum’s testimony on redirect, was sustained:
Q. In addition you were advised that if you committed perjury you would be charged
with it.
A. Absolutely.
Q. Do you know how many cases I have prosecuted as an Assistant United States
Attorney for perjury?
A. I do not.
Mr. Diaz [Cano’s defense counsel]: Judge, wait, I object to Ms. King’s being a witness in
this case.
THE COURT: Sustained.
25
Immunity was granted to Amanda Carillo and Stricklin by letters signed by the United
States Attorney.
19
witness was Osvaldo Marcial; he had been indicted and intended to plead guilty in
hopes of receiving for his testimony a sentence reduction under Rule 35 of the
Federal Rules of Criminal Procedure. During the direct examination of the
witnesses who had pled guilty and had been sentenced, the prosecutor, as is usually
the case, introduced the plea agreement (if applicable) and had the witness
elaborate on what had transpired. The same was true with the accomplices who
had pled, but had not been sentenced. Likewise with those testifying on a grant of
immunity.26 The cross-examination was conducted along the usual lines – the
implication being that the witness was lying in order to obtain favorable treatment.
Sometimes the prosecutor, on redirect if it was within the scope of the cross-
examination, brought out the fact that the witness could be charged with perjury or
emphasized that no promises had been made other than those contained in the plea
agreements and letters of immunity (documents which had been introduced into
26
The following is a typical example, occurring during Amanda Carillo’s testimony on
direct examination, of the alleged vouching:
Q. Have you been told what would happen if you did not tell the truth?
A. Yes.
Q. And what is that?
A. That I could be charged.
Q. Have any promises been made to you, Ms. Carillo?
A. No, none.
Q. Have you been charged as of this date?
A. No, none.
20
evidence on direct examination).27
Appellants also contend that the prosecutor’s remarks in closing argument
constituted vouching:
All these cooperating witnesses have come in. We
don’t come in here and say to you that you should believe
Ruben Carillo-Rosales because he is a nice guy, a good
guy or any reason such as that.
Ladies and gentlemen, the man came in here, as has every
cooperating witness, looking for something; namely a reduction in
their sentence.
They have come in here. They have agreed to plead guilty. We
have a number of their plea agreements which you will see. They are
going to go back [to the jury room].
Take a look at the terms. It is required that these defendants,
cooperating witnesses, come in and tell the truth, get on the witness
stand and talk to you truthfully or the government can charge them
with perjury, we can get them with obstruction of justice, we can do a
lot of things.
You are going to hear a lot of talk from the defense about how the
government basically gets in bed with these people, how we give them
the world, how we don’t care if they lie on the witness stand.
Ladies and gentlemen, they are required to tell the truth. Yes, the
assessment lies with the United States Government whether to file a
motion to reduce their sentence. Defendants can’t do it. The Judge
can’t do it. The United States Government is the only one with the
power to do that.
27
The same techniques were used by both the prosecution and defense on Marcial, even
though he did not enter into a plea agreement or testify under a grant of immunity.
21
We review a claim of vouching under a standard set out in United States v.
Castro, 89 F.3d 1443 (11th Cir. 1996). Vouching occurs when:
“[T]he jury could reasonably believe that the prosecutor was indicating a
personal belief in the witness’s credibility.” United States v. Sims, 719 F.2d
375, 377 (11th Cir. 1983), cert. denied 465 U.S. 1034, 104 S.Ct. 1304, 79
L.Ed.2d 703 (1984). In applying this test, we look for whether (1) the
prosecutor placed the prestige of the government behind the witness by
making explicit [personal] assurances of the witness’s credibility, or (2) the
prosecutor implicitly vouched for the witness’s credibility by implying that
evidence not formally presented to the jury supports the witness’s testimony.
Sims, 719 F.2d at 377.
Castro, 89 F.3d at 1457.
Appellants’ claims fail to meet either standard of the test. The prosecutor
only questioned the witnesses regarding the truth-telling portions of their plea
agreement and brought out the fact that the agreements stated they were subject to
perjury. No jury could reasonably believe these types of questions put the prestige
of the government behind each witness or indicated that the prosecutor was
implying there was evidence beyond what was presented to the jury that supported
the witness’s testimony. The alleged vouching in the testimony at hand is similar
to the testimony complained of in Castro:
In this case, the prosecutor merely questioned Gelber about the requirements
of the plea agreements to testify fully and truthfully. Furthermore, in his
questioning of Gelber, the prosecutor merely pointed out that Gelber risked
prosecution if he perjured himself. We have found similar questioning
proper. See United States v. Sims, 719 F.2d 375, 377 (11th Cir. 1983), cert.
denied, 465 U.S. 1034, 104 S. Ct. 1304, 79 L.Ed.2d 703 (1984).
22
Castro, 89 F.3d at 1457.
Moreover, we have found it proper for the prosecution to rehabilitate the witness
on direct examination if defense counsel attacks the witness’s credibility during the
opening statement. See United States v. Delgado, 56 F.3d 1357, 1368 (11th
Cir.1995). As in Delgado, the record here discloses vitriolic remarks during
defense counsel’s opening statements concerning the character and credibility of
government witnesses, referring to them as “snitches,” “criminals,” “master[s] of
manipulation,” and informants with an “axe to grind.”
As for the remarks in closing argument, it becomes obvious from a reading
of the record that appellants’ principal argument to the jury in closing would be
that none of these witnesses – continually called “snitches” throughout appellants’
closing arguments – were worthy of belief. The evidence of guilt was so
overwhelming that attacking these witnesses was about all defense counsel could
do. In other words, counsel concentrated on the credibility of these witnesses and
ignored the prosecution’s other evidence. In fact, in rebuttal argument, the
prosecutor invited the jury to disregard the accomplice testimony altogether and to
focus on the other evidence, contending that such other evidence was so strong that
the jury could convict on it alone.
Even if the prosecutor’s questions during examination and remarks at
23
closing constituted vouching, we hold that they were harmless and did not
prejudice any substantial right of the defendants. Consequently, we find that no
prosecutorial misconduct occurred with respect to impermissible vouching.
IV.
Count 13 of the indictment charged Cano with possession with intent to
distribute marijuana from March 1 to May 31, 1995. Cano was convicted on that
count and the district court sentenced him to life imprisonment pursuant to 21
U.S.C. § 841(b)(1)(A). Neither the presentence investigation report (“PSI”) nor
the record of the sentencing hearing established that Cano possessed any quantity
of marijuana during that time period. Although Cano’s defense counsel did not
raise this issue on appeal, and the Government has ignored the point, we review it
for plain error.
We find plain error. The absence of any evidence to support the charge
constitutes error. The error is plain, affects Cano’s substantial rights,28 and affects
the fairness, integrity, and public reputation of the proceeding on Count 13.
Cano’s conviction on that count is therefore vacated.
28
We note, however, that this does not make any practical difference, since Cano was
sentenced to thirteen concurrent life sentences, including the marijuana charge. With Count
thirteen vacated, he will serve twelve concurrent life sentences.
24
V.
For the foregoing reasons, the district court’s judgment against Cano on
Count 13 is VACATED, and the district court is directed to dismiss the count.
Appellants’ convictions and sentences are otherwise AFFIRMED.
SO ORDERED.
25