United States v. Gonzalo Garcia-Avila , 737 F.3d 484 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1313
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GONZALO GARCIA-AVILA,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 155 — Joan Humphrey Lefkow, Judge.
ARGUED NOVEMBER 5, 2013 — DECIDED DECEMBER 13, 2013
Before BAUER, WILLIAMS, and SYKES, Circuit Judges.
BAUER, Circuit Judge. Gonzalo Garcia-Avila (“Garcia”)
was charged with two counts: conspiracy to distribute and
possess with intent to distribute methamphetamine and
attempted distribution of methamphetamine. 21 U.S.C. §§ 846and 841(a)(1). A jury convicted Garcia of both counts, and he
now appeals. He contends that the district court erred when it
(1) allowed expert testimony to taint the jury and (2) admitted
evidence of his prior ecstasy transactions. He also argues that
2 No. 13-1313
the prosecution’s improper statements during rebuttal argu-
ments unfairly prejudiced the jury. We find no error for the
reasons that follow.
I. BACKGROUND
This appeal relates to Garcia’s involvement in planning a
drug deal that took place on March 1, 2010.
A. The Meeting on February 24, 2010
In exchange for an immunity agreement, a confidential
informant (“CI”) agreed to pose as an individual looking to
buy drugs. On February 24, 2010, the CI met with Pedro
Quiroz (“Quiroz”), whom he had known for several years, as
well as three other men—Francisco Mendez (“Mendez”),
Carlos Figueroa (“Figueroa”), and Garcia. Unbeknownst to
these men, the CI wore a wire and was secretly recording the
conversations that took place. At the meeting, the CI expressed
interest in purchasing “ice,” a slang term for methamphet-
amine, as well as other drugs. Garcia told the CI that he would
sell him one or two pounds of methamphetamine for $30,000.
The CI asked if methamphetamine was “the only kind that’s
gonna arrive now,” and Garcia responded that he could get
“some of the other stuff too,” referring to ecstasy. The CI asked
Garcia what he charged for a “bottle,” and Garcia stated, “[t]he
last one they sent me … [cost] 450.” At the end of the meeting,
the CI shook hands with Garcia, and then departed with
Mendez and Quiroz.
No. 13-1313 3
B. The Drug Bust on March 1, 2010
After the meeting, Garcia, Mendez, Quiroz, Figueroa, and
Rosendo Jimmenez (“Jimmenez”) were in frequent contact.1
Quiroz called the CI and informed him that the deal was set to
take place on March 1, 2010. The CI worked in concert with
DEA agents to prepare for the drug bust. On March 1, 2010, the
CI and an undercover DEA agent drove in separate vehicles to
meet with Mendez and Quiroz; the CI again wore a wire and
secretly recorded the conversations that took place. The
undercover agent had $36,000 hidden in a secret compartment
in his van; he handed the money to Mendez, and allowed him
to inspect it. He told Mendez he would get the money once the
exchange was made.
The CI then drove with Mendez and Quiroz to a grocery
store near 79th and Pulaski to complete the deal. Mendez
explained that Garcia wanted the CI to call the agent and tell
him to remove the money and turn over his van so it could be
loaded with drugs. The CI told Mendez, however, that the
agent was unwilling to give up his vehicle, so the conspirators
decided to load the drugs into the CI’s car instead. Figueroa
asked the CI if it was okay to “throw [the drugs] in the trunk
for you?” and the CI assured him that it was. The CI then
exited his vehicle and left the car running with his keys in the
ignition. Figueroa drove away in the CI’s car.
1
Phone records show that between February 24, 2010, and March 1, 2010,
there were 115 contacts between Garcia and Mendez, 65 contacts between
Garcia and Figueroa, 17 contacts between Garcia and Jimmenez, and 34
contacts between Mendez and Quiroz.
4 No. 13-1313
A short time later, DEA agents stopped a different car,
which Figueroa was driving. Garcia was a passenger in the car.
The agents recovered a set of keys from Garcia; it included a
key to the CI’s vehicle. Agents then used the key to open the
CI’s vehicle; they found a plastic bag containing 888.2 grams of
pure methamphetamine on the front passenger seat. The drugs
had a street value of $355,000.
On March 2, 2010, Garcia, Quiroz, Mendez, Figueroa, and
Jimmenez were charged in a complaint, alleging that they had
intentionally and knowingly conspired to distribute metham-
phetamine on March 1, 2010. They were later named in
indictments returned by a grand jury.
C. The Trial
Figueroa, Jimmenez, Quiroz, and Mendez were indicted
alongside Garcia, but Garcia was granted a separate trial. On
June 29, 2011, the government filed a pre-trial motion to admit
evidence concerning Garcia’s ability to obtain ecstasy as well
as methamphetamine. On July 20, 2011, the court ruled that
this evidence was admissible.
At Garcia’s trial, Jon Johnson (“Johnson”), a DEA agent
with 24 years of experience, was qualified as an expert. The
prosecution provided Johnson with transcripts of the conversa-
tions that took place on February 24, 2010, and March 1, 2010.
He gave his opinions about the meaning of certain code words
used during the conversations as well as statements made by
Garcia. On direct examination, Johnson was asked numerous
questions beginning with, “What do you understand [Garcia]
to mean when he said …?” Defense counsel never objected to
the form of these questions or to Johnson’s responses. On
No. 13-1313 5
cross-examination, Johnson made clear that he (1) had not
participated in any aspect of the investigation, (2) had not
listened to the recordings or to trial testimony, (3) did not have
personal knowledge about the speakers identified in the
transcripts, and (4) could not authenticate the voices identified
in the transcripts.
During closing arguments, the prosecutor stated, “[Garcia
is] sitting there with Carlos Figueroa, who is using all the lingo
about methamphetamine deals and Ecstasy deals … . It’s not
a coincidence that … this conversation is entirely in slang and
in code words … . [Garcia is] using those words because he
understands them. He knows them, and he does these things.”
Defense counsel made no objections.
On August 1, 2011, after six days of trial, the jury convicted
Garcia of both counts. He was sentenced to 120 months’
imprisonment and timely appealed to this Court.
II. DISCUSSION
Garcia argues that his conviction should be vacated and
that his case should be remanded for a new trial. He contends
that the district court erred by admitting the expert testimony
of Johnson, and by allowing evidence of his prior ecstasy
dealings. He also claims that the prosecutor’s statements
during rebuttal arguments unfairly prejudiced the jury.
A. Johnson’s Expert Testimony
Garcia contends that the district court abused its discretion
by admitting Johnson’s expert testimony. Garcia does not
object to Johnson’s qualifications as an expert. Instead, he
objects to Johnson’s testimony, which he contends unfairly
6 No. 13-1313
prejudiced the jury. Normally, we review a district court’s
admission of expert testimony for abuse of discretion. United
States v. Pansier, 576 F.3d 726, 738 (7th Cir. 2009). However,
since defense counsel failed to object to Johnson’s testimony
at trial, this issue must be reviewed for plain error. United
States v. Canady, 578 F.3d 665, 669 (7th Cir. 2009). “Under the
plain error standard, we must determine whether there was
(1) an error, (2) that was plain, meaning clear or obvious,
(3) that affected the defendant’s substantial rights in that
he probably would not have been convicted absent the error
and, (4) that seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Christian,
673 F.3d 702, 708 (7th Cir. 2012).
Federal Rule of Evidence 704(b) states:
In a criminal case, an expert witness must not state
an opinion about whether the defendant did or did
not have the mental state or condition that consti-
tutes an element of the crime charged or of a de-
fense. Those matters are for the trier of fact alone.
This Court has held that experts may testify as to the way
drug dealers operate and to the meaning of code words dealers
use as long as the testimony is based on their expert opinion
and not on the defendant’s specific mental processes. United
States v. Are, 590 F.3d 499, 512–13 (7th Cir. 2009); United States
v. Avila, 557 F.3d 809, 820 (7th Cir. 2009); United States v.
Ceballos, 302 F.3d 679, 687–88 (7th Cir. 2002). In United States v.
Lipscomb, 14 F.3d 1236, 1243 (7th Cir. 1994), for example, we
upheld the district court’s admission of expert testimony
because officers testified that their opinions were based on
No. 13-1313 7
their knowledge of “common practices in the drug trade” and
not on “some special familiarity with the workings of
Lipscomb’s mind.” We stated:
When a law enforcement official states an opinion
about the criminal nature of a defendant’s activities,
such testimony should not be excluded under Rule
704(b) as long as it is made clear, either by the court
expressly or in the nature of the examination that the
opinion is based on the expert’s knowledge of
common criminal practices, and not on some special
knowledge of the defendant’s mental processes.
Id. at 1242.
Similarly, in Are, we held that the admission of expert
testimony about “coded language” did not violate Rule 704(b),
since the expert based his testimony on his experience and
training. 590 F.3d at 513. The expert made clear that he had not
interviewed any witness in relation to the trial, and had not
reviewed any documents in connection with the case, other
than the transcripts. Id. We concluded that it was “apparent
that Coleman testified as an expert on the basis of his knowl-
edge of drug dealers’ use of coded language generally and not
on some special knowledge of the defendant’s mental pro-
cesses or mental states.” Id.In the instant case, Johnson was asked several questions
beginning with, “What do you understand [Garcia] to mean
when he said …?” While the phrasing of these questions may
have alluded to Garcia’s mental state, Johnson made clear to
the jury that he was not testifying based on personal knowl-
edge. He testified that he (1) could not vouch for the accuracy
8 No. 13-1313
of the transcripts, (2) had not listened to the recordings of the
conversations that took place on February 24, 2010, and
March 1, 2010, and (3) lacked personal knowledge of the
identities of any of the speakers. In addition, on cross-examina-
tion, Johnson admitted that he had not participated in any
aspect of the investigation. Johnson made clear that he was not
testifying based on “some special familiarity with the workings
of [Garcia’s] mind,” but instead, was relying upon his 24 years
of experience and his “knowledge of common criminal
practices” in order to help the jury understand coded language
related to drug transactions. Lipscomb, 14 F.3d at 1242–43.
This is not a case where Johnson was testifying both as
an expert and as a lay witness, where the risk of unfair preju-
dice is more troublesome. See, e.g., Lipscomb, 14 F.3d at 1242(“Testimony is understood to carry dangers of its own,
particularly when the expert is also one of the officers involved
in the arrest.”). Here, Johnson testified only as an expert
witness; he had no prior links to Garcia, nor had he partici-
pated in investigating the case.
Furthermore, defense counsel never once objected during
Johnson’s testimony, either to the form of the questions, or to
Johnson’s responses. Thus, even if portions of Johnson’s
testimony were admitted in error, we can reverse only if
the error “seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Christian, 673 F.3d at 708.
We find no error here; reversal on this ground is not war-
ranted.
No. 13-1313 9
B. Admission of 404(b) Evidence Related to Garcia’s
Prior Ecstasy Activities
Garcia also argues that the district court abused its discre-
tion when it admitted evidence of his prior ecstasy transac-
tions. He claims that this evidence was used for propensity
purposes and unjustly prejudiced the jury against him.
When a trial court admits evidence over a defendant’s
objection, we review the district court’s ruling for abuse of
discretion. Avila, 557 F.3d at 819. “The district court’s eviden-
tiary rulings are afforded special deference and will be
reversed ‘only where no reasonable person could take the view
adopted by the trial court.’” United States v. Reese, 666 F.3d
1007, 1015 (7th Cir. 2012) (quoting United States v. Vargas, 552
F.3d 550, 554 (7th Cir. 2008)). “Even when an abuse of discre-
tion occurs, however, reversal only follows if admission of the
evidence affected the defendant’s substantial rights.” United
States v. Richards, 719 F.3d 746, 758 (7th Cir. 2013). This Court
asks “whether an average juror would find the prosecution’s
case significantly less persuasive without the improper
evidence.” United States v. Miller, 673 F.3d 688, 700 (7th Cir.
2012).
Rule 404(b) bars the admission of evidence of “a crime,
wrong, or other act” committed by the defendant when it is
used to “show a defendant’s propensity to commit a crime,
[or] to show that he or she acted in conformity with that
propensity on the occasion in question.” United States v. Jones,
389 F.3d 753, 756 (7th Cir. 2004). This evidence, however, may
be admissible “for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
10 No. 13-1313
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).
To determine if 404(b) evidence is admissible, this Court
employs a four-part test. Evidence is admissible if (1) the
evidence is directed towards establishing a matter other than
the defendant’s propensity to commit crimes charged, (2) the
other act is similar and close enough in time to be relevant,
(3) the evidence is sufficient to support a jury finding that the
defendant committed the other act, and (4) the probative value
of the evidence is not substantially outweighed by the danger
of unfair prejudice. United States v. Reese, 666 F.3d 1007, 1015
(7th Cir. 2012) (quoting United States v. Baker, 665 F.3d 677, 681
(7th Cir. 2011)).
During their conversation on February 24, 2010, the CI
asked Garcia how much he charged for a “bottle,” meaning
ecstasy. Garcia responded, “Let me call him. The last one they
sent me … 450,” which the CI took to mean that a bag of
ecstasy tablets cost $450. Garcia also added, “some; if you
want, next time he comes, right? He’ll bring you some.” The
court allowed evidence of Garcia’s ecstasy-related comments
over defense counsel’s objections, explaining that “the mention
of other substances that are available or that may become
available does have probative impact in this case.” The court
allowed the evidence “with the clear understanding that it
should not reference or in any way indicate the prior transac-
tions.”
While Garcia asserts that the evidence should be evaluated
under Rule 404(b), the government argues, as it did in the
district court, that the ecstasy evidence is direct evidence of the
charged methamphetamine crimes and therefore is not “other
acts” evidence in the first place. We need not definitively
No. 13-1313 11
resolve this evidentiary dispute; even if the ecstasy evidence
falls within the scope of Rule 404(b), any possible error related
to its admission was harmless, and did not affect Garcia’s
substantial rights. The evidence implicating Garcia in the
methamphetamine transaction was more than sufficient to
support his conviction. In the days leading up to the drug bust,
Garcia exchanged numerous phone calls with other members
of the drug conspiracy. He was in frequent contact with his co-
conspirators on the day the drug deal took place. When Garcia
was arrested after the drug transaction was complete, he
possessed the keys to the CI’s car, where the methamphet-
amine had been placed. Taken together, these facts establish
that Garcia was integral in organizing and implementing the
methamphetamine deal that took place on March 1, 2010. Thus,
any error related to the admission of the ecstasy evidence was
harmless.
C. The Prosecutor’s Statement in Rebuttal Arguments
Finally, Garcia argues that the government made an
improper propensity inference during its rebuttal argument
that unfairly prejudiced the jury against him. When reviewing
a claim of prosecutorial misconduct, we first consider whether
the remark was improper; then we consider whether it
prejudiced the defendant. United States v. Serfling, 504 F.3d 362,
377 (7th Cir. 2007). “Improper statements made during closing
argument are rarely reversible error.” United States v. Bowman,
353 F.3d 546, 550 (7th Cir. 2003) (citing United States v. Ander-
son, 450 F.3d 294, 300 (7th Cir. 2006)). “Ultimately, the inquiry
turns on whether the improper statement ‘so infected the trial
with unfairness as to make the resulting conviction a denial of
12 No. 13-1313
due process.’” Id. (quoting Darden v. Wainwright, 477 U.S. 168,
181 (1986)).
Garcia never objected to the prosecutor’s “and he does
those things” comment at trial, but now argues on appeal that
this statement was improper. “When a defendant objects for
the first time on appeal that a prosecutor made improper
comments during closing arguments, we review only for plain
error.” United States v. Turner, 651 F.3d 743, 751 (7th Cir. 2011);
United States v. Bowman, 353 F.3d 546, 550 (7th Cir. 2003). Since
Garcia failed to object to this comment at trial, he must show
“not only that the remark[] denied him a fair trial, but also that
the outcome of the proceedings would have been different
absent the remark[].” Id. (quoting United States v. Sandoval, 347
F.3d 627, 631 (7th Cir. 2003)).
Here, Garcia asserts that when the prosecutor said, “and he
does those things” during rebuttal arguments, he was suggest-
ing that Garcia had a history of dealing drugs, which unfairly
prejudiced the jury against him. This statement standing alone,
however, was insufficient to “so infect the trial with unfair-
ness” as to deny Garcia a fair trial. In Turner, we held that a
prosecutor’s “once a drug dealer, always a drug dealer”
argument did not constitute plain error. 651 F.3d at 752. We
explained that “so long as the evidence supports the com-
ments, prosecutors may speak harshly about the actions and
conduct of the accused.” Id. (quoting United States v. Durham,
211 F.3d 437, 440 (7th Cir. 2000)). Here, the prosecutor’s
statement was based upon the transcripts presented at trial.
The outcome of Garcia’s trial did not turn on this lone remark
by the prosecutor, and we find no plain error.
No. 13-1313 13
III. CONCLUSION
We find that the court did not err when it (1) admitted the
expert testimony of Johnson and (2) allowed evidence of
Garcia’s comments related to his prior ecstasy dealings. We
also find no error related to the prosecutor’s statements during
rebuttal arguments. For these reasons, we uphold Garcia’s
convictions and AFFIRM the decision of the district court.