United States v. Nunez, Fausto ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2617
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FAUSTO NUNEZ, ALSO KNOWN AS
ANTONIO ROSALES,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 04 CR 161—Sarah Evans Barker, Judge.
____________
ARGUED MAY 16, 2008—DECIDED JULY 11, 2008
____________
Before BAUER, POSNER and WOOD, Circuit Judges.
BAUER, Circuit Judge. From April through October of
2004, the Drug Enforcement Administration (DEA) in
Indianapolis conducted an investigation of a multi-state
methamphetamine trafficking organization after a confi-
dential informant bought one pound of methamphetamine
from an individual, who was seen getting the drugs
from Expedito Carrillo (also known as Isidoro Lopez-
Salas). The investigation revealed that Carrillo supplied
drugs to several other individuals, including Defendant-
2 No. 07-2617
Appellant Fausto Nunez.1
On October 6, 2004, Nunez was indicted on one count
of conspiracy to possess with the intent to distribute
and/or to distribute fifty grams or more of methamphet-
amine, and/or five hundred grams or more of a mixture
or substance containing a detectable amount of meth-
amphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(viii), and 846.2 Nunez was arrested on Octo-
ber 7, 2004 at his residence, pursuant to a federal arrest
warrant. The case was tried by a jury in January of 2007,
and Nunez was convicted as charged.
On appeal, Nunez argues that the district court erred in
permitting the jury to use transcripts of intercepted phone
conversations that marked and defined alleged code
words for drug terms. Nunez also asserts that multiple
instances of prosecutorial misconduct amount to cumula-
tive error resulting in an improper verdict. For the fol-
lowing reasons, we reject Nunez’s contentions and
affirm his conviction.
A. The Transcripts
Over the course of the investigation, the DEA obtained
four different court-authorized wiretaps on the cellular
1
This was determined through surveillance of drug deals
between Carrillo and the other co-conspirators, and was
confirmed by Nunez during a proffer session in which he
told the government that he had purchased two and a half
pounds of methamphetamine from Carrillo.
2
On January 25, 2005, Nunez was charged by superceding
indictment with the same.
No. 07-2617 3
phones of Carrillo and other co-conspirators. Between
June 18 and September 11, 2004, the DEA intercepted
at least 120 conversations between Nunez and Carrillo,
the majority of which were in Spanish.
On November 22, 2004, Nunez and his attorney appeared
at the DEA’s office in Indianapolis for a proffer session.
DEA Special Agent Kevin Steele was also present. Nunez
listened to three of the intercepted conversations bet-
ween himself and Carrillo and advised Agent Steele that
he used the terms “lemonade” and “windows” (“ventanas”
in Spanish) as code words when he spoke to Carrillo
about methamphetamine.
Twenty-one of the conversations intercepted between
Nunez and Carrillo were admitted at trial. Because
those conversations were in Spanish, Spanish-speaking
language specialists who had monitored the calls during
the investigation prepared transcripts of the calls in
English. The transcripts were then provided to the jurors
to assist them in understanding the recorded conversations.
Some of the transcripts contained words that the language
specialists had determined were code words. Those words
were denoted in the transcripts with either quotation marks
or a footnote containing the language specialists’ under-
stood definitions of the code words. The transcripts
contained footnotes defining the following words:
Greñudas [hairy ones] = Mexican word usually used by
drug dealers as code when referring to Marijuana.
Tickets = Word usually used by Mexican drug dealers
as code word when referring to money.
Picture [retrato] = Mexican word usually used by drug
dealers as code word when referring to a sample of any
narcotic substance or product.
4 No. 07-2617
Lemonades [Limonadas] = Mexican word usually used
by drug dealers as code word when referring to nar-
cotic substances or products.
Nunez objected to the use of quotation marks and
footnotes in the transcripts, arguing that “the selective use
of quotation marks highlighting the Spanish terms and
using footnotes is improper . . . as a means of bolstering
the government’s case. . . .” The district court judge
ruled that the use of quotation marks and footnotes was not
prejudicial or misleading, and at Nunez’s request, gave a
cautionary instruction to the jury regarding their use:
Those footnotes and [a language specialist’s] use of
that way to explain what she heard as she translated
is a statement that she’s made as a witness to you
with respect to these matters. You don’t necessarily
have to accept that. And in any event what weight
you choose to give to that, whether it makes any
difference to you in your deliberations, will be en-
tirely up to you to decide.
The language specialists testified at trial that the tran-
scripts reflected what they heard in the conversations,
and that the footnotes and quotation marks were based
on what they understood the code words’ meanings to
be from their own experiences. They also testified that
they inserted the quotation marks and footnotes on
their own accord, and not at the government’s (or any-
one else’s) request.
Agent Steele, a Missouri State Trooper for fourteen
years and a DEA special agent for seven, testified that in
his training and experience, code words such as “lemon-
ade” and “windows” referred to methamphetamine,
“greñudas” referred to marijuana, and “tickets” referred
No. 07-2617 5
to payment for drugs. Nunez testified in his defense and
admitted that he was a drug dealer and agreed that
“greñudas” meant marijuana and that “tickets” referred
to money, but claimed “lemonade” also referred to mari-
juana and that he was unfamiliar with the term “win-
dows.” Because Nunez’s testimony at trial about the
code words’ meanings contradicted the definitions he
supplied during his proffer session, Agent Steele re-
turned to the stand in the government’s rebuttal case and
testified about Nunez’s proffer statements, including
Nunez’s statement that the terms “lemonade” and “win-
dows” referred to methamphetamine.
Nunez’s first argument on appeal is that the district
court erred in permitting the government to introduce
transcripts of the wiretap calls that included quotation
marks and footnotes concerning certain words that it
claimed were code words for drugs. We review the dis-
trict court’s decision to allow the government to intro-
duce the transcripts under an abuse of discretion stand-
ard. United States v. Ceballos, 385 F.3d 1120, 1124 (7th
Cir. 2004); United States v. Breland, 356 F.3d 787, 794 (7th
Cir. 2004). The district court has wide discretion in deter-
mining whether to allow juries to use written transcripts
as aids while listening to audio recordings. Breland, 356
F.3d at 794 (citing United States v. Keck, 773 F.2d 759, 766
(7th Cir. 1985)). We will not disturb the court’s decision
if the error was harmless. See Fed. R. Crim. P. 52(a); see
United States v. Gochis, 256 F.3d 739, 742-43 (7th Cir. 2001)
(stating that an error is harmless if the defendant’s sub-
stantial rights are not affected) (citing Peguero v. United
States, 526 U.S. 23, 29 (1999)). “The test for harmless error
is whether, in the mind of the average juror, the prosecu-
tion’s case would have been significantly less persua-
6 No. 07-2617
sive had the improper evidence been excluded.” United
States v. Emerson, 501 F.3d 804, 813 (7th Cir. 2007) (internal
quotation omitted).
Transcripts of recorded conversations are a virtual
necessity when the conversations take place in Spanish
and are admitted into evidence before an English-speak-
ing jury. See United States v. Comargo, 908 F.2d 179, 183
(7th Cir. 1990). In both Ceballos and Breland, the district
court allowed the jury to use transcripts of intercepted
phone conversations that identified the alleged speakers
when the defendants contested the identities of the speak-
ers. See Ceballos, 385 F.3d at 1124; Breland, 356 F.3d at
795. During those trials, the government presented testi-
mony from lay witnesses that identified the voices heard
in the intercepted conversations as the voices of the
defendants. Id. The district court in Ceballos instructed
the jury that the defendants contested their voice iden-
tifications marked on the transcripts, while the district
court in Breland informed the jury that if there was any
variation between the tapes and the transcripts, they
were to rely solely on the tapes. This Court said that
both district courts properly instructed the jury and so
there was no abuse of discretion. Ceballos, 385 F.3d at
1124; Breland, 456 F.3d at 795.
Unlike the district court’s instructions in Ceballos or
Breland, here the district court’s attempt at a curative or
limiting instruction was to tell the jury that it could
afford as much weight as it felt proper to the transcripts
of the intercepted conversations. Yet transcripts should
not ordinarily be given independent weight. See United
States v. Jordan, 223 F.3d 676, 689-90 (7th Cir. 2000) (dis-
trict court properly instructed the jury that the transcripts
of recorded conversations were not evidence and that
No. 07-2617 7
only the tape recordings were entitled to weight); United
States v. Singleton, 125 F.3d 1097, 1105 (7th Cir. 1997)
(same); see also 12A Fed. Proc., L. Ed. § 33:641 (outlining
proper jury instructions for transcripts of audio record-
ings). The jury should be instructed that it is the tape
recording itself which is the primary evidence, that the
transcript is to assist the jury in evaluating the primary
evidence, and that if the jury determines that the tran-
script is in any respect incorrect, it should disregard it to
that extent and rely on its own interpretation of the re-
cording. See Comargo, 908 F.2d at 183 (discussing appro-
priate limiting instruction for jury’s use of transcripts);
United States v. Doerr, 886 F.2d 944, 966 (7th Cir. 1989)
(same).
The district court erred by telling the jury that the
transcripts—in particular, the language specialists’ code
word definitions—could be given any weight at all. Yet
this error does not amount to reversible error, since the
language specialists testified at the trial as to their defini-
tions of the code words marked in the transcripts, and
that testimony was entitled to as much or as little weight as
the jury wanted to give it. In addition to the language
specialists’ testimony regarding the code words, DEA
Agent Steele testified as to their meaning and as to Nunez’s
definitions of the code words provided during the
proffer session, all of which mirrored the definitions
contained in the transcripts. The district court’s instruction
did not allow the jury to consider evidence of the code
words’ meaning that was not already in evidence apart
from the transcripts. We find that the case was persua-
sive of Nunez’s guilt without the transcripts.
8 No. 07-2617
B. Prosecutorial Misconduct
Nunez also argues that multiple instances of improper
statements, questions, and argument by the prosecutor had
the cumulative effect of denying Nunez a fair trial. Specifi-
cally, Nunez contends that the prosecutor’s line of ques-
tioning that forced Nunez to call a DEA agent a liar
was improper, as was the prosecutor’s comment that
Nunez’s testimony regarding his recollection of the
proffer session was “patently false.” Nunez also claims
that the prosecutor improperly vouched for Agent Steele’s
credibility, disparaged defense counsel, and insinuated that
defense counsel believed Nunez was guilty during
its closing argument.
In reviewing a claim for prosecutorial misconduct, we
first address the alleged misconduct to determine if it
was in fact improper. United States v. Corley, 519 F.3d 716,
727 (7th Cir. 2008). If it was improper, we next consider
whether it prejudiced the defendant. Id.; United States v.
Serfling, 504 F.3d 672, 677 (7th Cir. 2007). We address each
alleged error in turn to determine if any were improper
before we consider Nunez’s cumulative error argument.
1. Asking Nunez to Comment on DEA Agent’s
Credibility
During the government’s case-in-chief, a DEA special
agent testified that when Nunez was arrested on October
7, 2004, Nunez told the agent that his name was Antonio
Rosales. Later in the trial, Nunez testified that he had
not, in fact, identified himself as Rosales to the agent. On
cross-examination, the prosecutor asked Nunez if the
agent was lying. Defense counsel objected to the question,
but the district court overruled the objection and Nunez
No. 07-2617 9
responded, “Yes, because I never tell him my name was
Antonio Rosales in the beginning.”
Nunez contends that the prosecutor’s question to Nunez
of whether a DEA agent was lying in his trial testimony
was improper. Nunez contemporaneously objected to the
prosecutor’s question, thus we review the district courts’
decision to let the question stand under an abuse of
discretion standard. See United States v. Miller, 276 F.3d
370, 373 (7th Cir. 2002).
The government takes the position that the question
posed to Nunez “was a fair one, and allowed the jury to
evaluate Nunez’s credibility in light of other evidence in
the case.” But this circuit’s precedent makes clear that
assessing the credibility of a witness’s testimony is the
job of the jury, and asking a defendant to comment on the
veracity of the testimony of another witness is improper.
United States v. Thomas, 453 F.3d 838, 846 (7th Cir. 2006);
United States v. McKee, 389 F.3d 697, 699 (7th Cir. 2004). The
majority of our sister circuits agree. See United States v.
Harris, 471 F.3d 507, 511 (3d Cir. 2006); United States v.
Williams, 343 F.3d 423, 438 (5th Cir. 2003); United States v.
Sanchez, 176 F.3d 1214, 1220 (9th Cir. 1999); United States v.
Sullivan, 85 F.3d 743, 750 (1st Cir. 1996); United States v.
Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995); United States v.
Richter, 826 F.2d 206, 208 (2d Cir. 1987); but see United States
v. Williamson, 53 F.3d 1500, 1523 (10th Cir. 1995) (finding
the reasoning employed in Richter to be unpersuasive as to
why such questions are improper). We find that the
prosecutor’s question to Nunez was improper, and the
district court erred in allowing it.
10 No. 07-2617
2. Prosecutor’s Remark that Nunez’s Testimony Was
“Patently False”
Nunez testified about his recollection of the
November 22, 2004 proffer session. Nunez claimed that
his former attorney told him to lie at the proffer session
and that the government had promised him a deal,
which involved the possibility of no jail time. Nunez
stated that he lied at the proffer session in an effort to
serve these interests, but that the government agents had
lied to him as well. During Nunez’s redirect examination,
defense counsel asked Nunez to describe what he remem-
bered taking place during the proffer session. During
Nunez’s response, the government objected to the answer
as being “unresponsive to the question . . . as well as being
patently false.” The district court judge sustained the
objection and said, “I’ll strike the unsolicited remark and
improper remark of counsel and direct the jury not to
consider it.”
The government concedes that this comment was im-
proper, but maintains that the district court swiftly cured
the impropriety with its instruction. Nunez contends
that this error standing alone warrants reversal. We
disagree. Undoubtedly, this comment was improper, but
misconduct by a prosecutor that is promptly and vigor-
ously corrected by the district court judge is not reversible
error. United States v. Mazzone, 782 F.2d 757, 763 (7th Cir.
1986).
3. Closing Arguments
During the government’s closing argument, the prosecu-
tor framed the trial as a credibility battle. The prosecutor
staged the credibility of Agent Steele against that of
No. 07-2617 11
Nunez, and noted that Nunez was an admitted drug
dealer, that he had two prior felony convictions, that he
was in the United States illegally at the time of his arrest,
that he had applied for and received an Indiana iden-
tification card in a false name, that he admitted in his
November proffer that he bought and sold large amounts
of drugs but then recanted his story at trial, and that he
testified at trial that he lied when it served his interests.
The prosecutor described Agent Steele as a good agent
who was “just doing his job.”
During Nunez’s closing argument, defense counsel
challenged Agent Steele’s credibility, specifically in
regard to the code words’ meanings. Defense counsel
stated that the hard evidence did not support the gov-
ernment witnesses’ testimony, and that their opinions
were perhaps warped by the nature of their work (that
the agents saw “the world through drug-colored glasses”).
During the government’s rebuttal argument, the prosecu-
tor told the jury that defense counsel had not provided a
reason to believe Nunez over Agent Steele or to doubt
Agent Steele’s credibility, because no reason existed. The
prosecutor told the jury that defense counsel had a diffi-
cult job, but that “he’s stuck with his client in the case,”
and that defense counsel’s closing argument was “nothing
more than a not so thin, veiled, disguised attack on the
integrity of a good DEA special agent.” The prosecutor
concluded its closing argument by asking the jury to
“return a verdict based on the overwhelming amount of
evidence in this case.” At no point during closing argu-
ments did Nunez object.
Nunez argues, for the first time on appeal, that the
prosecutor made improper comments during his closing
and rebuttal argument. Nunez’s failure to raise this issue at
12 No. 07-2617
trial means that our review is limited to plain error, which
requires Nunez to establish “not only that the remarks
denied him a fair trial, but also that the outcome of the
proceedings would have been different absent the re-
marks.” United States v. Bowman, 353 F.3d 546, 550 (7th Cir.
2003) (quoting United States v. Sandoval, 347 F.3d 627, 631
(7th Cir. 2003)). Improper statements made during closing
argument are rarely reversible error. United States v.
Anderson, 450 F.3d 294, 300 (7th Cir. 2006); United States v.
Amerson, 185 F.3d 676, 685-86 (7th Cir. 1999).
We find that none of the challenged remarks during
closing arguments were improper. “[T]he government is
allowed to comment on the credibility of a witness . . . as
long the comment reflects reasonable inferences from
the evidence adduced at trial rather than personal opin-
ion.” United States v. Morgan, 113 F.3d 85, 89 (7th Cir. 1997)
(quoting United States v. Goodapple, 958 F.2d 1402, 1409-10
(7th Cir. 1992)). The prosecutor’s argument in favor
of Agent Steele’s version of events was perfectly accept-
able, considering Agent Steele was the key witness for
the government and Nunez testified in his own defense.
See Bowman, 353 F.3d at 550-51 (discussing similar com-
ments in closing arguments and determining that all
were proper based on the witnesses and evidence pre-
sented at trial); Sandoval, 347 F.3d at 631 (stating that a
prosecutor is entitled to ask the jury to weigh the credibil-
ity of the witnesses). Aside from the collateral evidence of
the other witnesses and the drugs, money, and other
materials seized during the course of the investigation, the
case hinged on the testimony of these two individuals.
Nothing in the prosecutor’s closing argument was based
on evidence outside of the trial record. The prosecutor
merely reiterated the experience and qualifications of
No. 07-2617 13
Agent Steele, and the criminal record of Nunez, all of
which was testified to (without objection) during trial.
There was no improper vouching.
Nunez also challenges comments made by the prosecutor
during rebuttal that, in Nunez’s opinion, disparaged
defense counsel and implied that defense counsel thought
he was guilty. Nunez claims these comments infringed
on his right to assistance of counsel. We are unconvinced.
The prosecutor’s comments that Nunez categorizes as
“disparaging to defense counsel” (that defense counsel’s
argument was “nothing more than a not so thin, veiled,
disguised attack on the integrity of a good DEA special
agent”) was far from disparaging. The prosecutor’s com-
ment was an attack on the strength (or lack thereof) of the
defense—which is permissible—and was not a personal
attack on defense counsel. See United States v. Glover, 479
F.3d 511, 520 (7th Cir. 2007) (drawing attention to the
weaknesses in the defense is permissible in closing argu-
ment) (citing cases); United States v. Washington, 417
F.3d 780, 787 (7th Cir. 2005) (prosecutor’s argument that
focused on the lameness of the defense was proper).
Moreover, the prosecutor’s comment was in direct re-
sponse to defense counsel’s attacks on the credibility of
Agent Steele and was thus proper rebuttal argument.
The prosecutor’s comment that defense counsel was
“stuck with his client” did not imply that defense counsel
believed his client was guilty, nor was it improper. Taken
in context, the prosecutor was explaining that neither
the facts nor the law were on Nunez’s side, and so defense
counsel was left with a weak defense of poor police work.
The comment struck at the weakness of the defense, and
not at any doubt by defense counsel in his client’s inno-
cence. Although this may not have been the most artful
14 No. 07-2617
rebuttal argument, there was nothing impermissible about
it. See Bowman, 353 F.3d at 551 (finding the prosecutor’s
emphasis on the defendant’s past criminal behavior and
the police officer’s version of the events to be supported
by facts in the record and thus used for permissive pur-
poses) (citing Sandoval, 437 F.3d at 631). Furthermore, the
district court judge ameliorated any potential that the
jury relied on improper argument by counsel when it
instructed the jury prior to its deliberations that state-
ments and arguments of counsel are not evidence unless
made as an admission or stipulation of fact. See Washington,
417 F.3d at 787. We find no impropriety in the govern-
ment’s closing or rebuttal argument.
C. Cumulative Error
Finally, we turn to Nunez’s argument that the cumula-
tive prejudice of the errors denied him a fair trial. The
only errors to consider are the prosecutor’s improper
question requiring Nunez to say that a DEA agent was
lying, and the prosecutor’s improper comment that
Nunez’s testimony regarding the proffer session was
“patently false.” When an appellant alleges cumulative
error, this Court will only consider plain errors and
errors which were preserved for appellate review. Alvarez
v. Boyd, 225 F.3d 820, 825 (7th Cir. 2000). Nunez preserved
both of these issues at the trial court, and so we con-
sider whether these errors prejudiced Nunez. In
determining prejudice, we consider the following factors:
(1) whether the prosecutor misstated the evidence;
(2) whether the remark implicated a specific right;
(3) whether the defendant invited the remark; (4) whether
the district court provided (and the efficacy of) a curative
instruction; (5) whether the defendant had an opportunity
No. 07-2617 15
to rebut the remark; and (6) the weight of the evidence
against the defendant. Corley, 519 F.3d at 727. “[I]t is not
enough that the prosecutor’s remarks were undesirable or
even universally condemned. The relevant question is
whether the prosecutor’s comments so infected the trial
with unfairness as to make the resulting conviction a
denial of due process.” Washington, 417 F.3d at 786 (quoting
Darden v. Wainwright, 477 U.S. 168, 181 (1986)).
We first note that the errors do not implicate any of
Nunez’s specific trial rights; rather they are instances of
general prosecutorial misconduct. See United States v.
Wesley, 422 F.3d 509, 515 (7th Cir. 2005). Accordingly, we
consider the remarks in light of the entire record
to determine if the improper comments “so infected the
trial with unfairness as to make the resulting conviction
a denial of due process.” Id. (quoting Darden, 477 U.S.
at 181).
We do not agree that the outcome of the trial would have
differed absent these errors. It is unlikely that the prosecu-
tor’s improper question posed to Nunez regarding the
credibility of the DEA agent’s testimony caused any
damage to Nunez’s case. Nunez testified to an entirely
different version of events as to what took place at the
proffer session than what Agent Steele testified to, and
therefore a reasonable jury would undoubtedly infer that
Nunez believed the agent to be lying in his testimony. The
question may have gone too far in the sense that it did
not give the jury credit for being able to reach the logical
conclusion on its own that Nunez believed the agent
was lying, but this type of improper question rarely
amounts to reversible error, and this case is no excep-
tion. See Thomas, 453 F.3d at 846; McKee, 389 F.3d at 700.
16 No. 07-2617
As to the prosecutor’s improper comment that Nunez’s
testimony was “patently false,” the district court judge
immediately struck the remark and instructed the jury to
disregard it. The remark was not so powerful or over-
whelming to make it impossible for the jury to disregard
it, and so we presume that the jurors followed the in-
structions from the court. See United States v. Danford, 435
F.3d 682, 687 (7th Cir. 2006) (noting that jurors are pre-
sumed to be capable of disregarding improper evidence
presented to them unless the evidence is so incriminating
that they could not be expected to put it out of their
minds).
Both of these errors taken together cast little doubt on
the guilt of Nunez. Neither of these errors implicated the
core issue of Nunez’s guilt or innocence. The government
presented convincing evidence of Nunez’s guilt, which
included over one hundred phone conversations between
Nunez and the conspiracy leader, Carrillo (which Nunez
conceded included his voice) in a seven-month period
of time which used code words to discuss the buying
and selling of drugs on a national level. The evidence also
included Nunez’s statements to Agent Steele at a proffer
session that he had purchased two and a half pounds of
methamphetamine from Carrillo, that the drugs were
provided by Carrillo on credit, and that he resold the
drugs to others. Methamphetamine and cutting agents
were seized from Carrillo and other co-conspirators, and
a digital scale commonly used by drug dealers was
seized from Nunez’s residence. The intercepted phone
calls revealed that (1) Nunez knew of at least five trips
another co-conspirator made to California to get between
six and twenty pounds of methamphetamine per trip,
(2) the individual brought it back to Indiana (a fact that
Nunez also admitted at the proffer session), and (3) Nunez
No. 07-2617 17
expressed concern to Carrillo after the co-conspirator
transporting a large amount of methamphetamine was
caught with the drugs. Nunez admitted at trial that he
was a drug dealer and that he lied in the past when it
served his purposes. In light of these damning admissions
and evidence, there is no reason to believe that the out-
come of the trial would have been any different absent
the improper statements by the government. There was
no cumulative error resulting in prejudice to Nunez.
For the reasons contained herein, we find no error
warranting a new trial. Accordingly, we affirm Nunez’s
conviction.
USCA-02-C-0072—7-11-08