United States v. Luis Vasquez , 335 F. App'x 644 ( 2009 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 23, 2009*
Decided July 1, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 06-2109
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District
of Illinois, Eastern Division.
v.
No. 04-CR-688
LUIS VAZQUEZ,
Defendant-Appellant. Harry D. Leinenweber, Judge.
ORDER
On September 29, 2005, Luis Vazquez was charged along with numerous co-defendants in
a twenty-one-count indictment for several offenses related to a drug conspiracy. Vazquez
proceeded to trial pro se and was convicted of all offenses for which he was charged. Vazquez
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
No. 06-2109 Page 2
now appeals his conviction, which we affirm.
I. BACKGROUND
Luis Vazquez was the ringleader of a large drug trafficking conspiracy in Waukegan and
North Chicago, Illinois. The Federal Bureau of Investigation began investigating this
conspiracy in 2004, and it obtained a great deal of evidence against Vazquez and his co-
defendants through a series of wiretaps, several of which were “roving.” A more extensive
investigation ensued, which ultimately led to Vazquez’s arrest in August, 2004.
On September 29, 2005, a grand jury returned a twenty-one-count superseding indictment
against Vazquez and six of his co-conspirators. Vazquez was named in eleven of these counts,
including, inter alia, conspiracy to distribute in excess of five kilograms of cocaine in violation
of 21 U.S.C. § 846, distribution of 45 kilograms of cocaine in violation of 21 U.S.C. § 841, and
possession with intent to distribute marijuana in violation of 21 U.S.C. § 841.
Vazquez elected to represent himself at trial, a decision that the court thoroughly
addressed at a hearing. At that hearing, the court informed Vazquez of the charges against
him and the mandatory maximum and minimum sentences for each charge. The court then
admonished Vazquez at length about the dangers of proceeding pro se and questioned
Vazquez about his background. When Vazquez indicated that he still wished to represent
himself, the court found that he had made a knowing and voluntary decision to waive his right
to counsel and proceed pro se.
During the seven-day trial, the government presented substantial evidence against
Vazquez. Central to this appeal is the testimony of FBI Agent Courtenae Trautmann, who
explained the government’s investigation and the information it received from the numerous
wiretaps. Trautmann testified that the FBI had identified Vazquez as a supplier of cocaine and
had subsequently received approval to wiretap Vazquez’s phones. She then described how
she had identified Vazquez’s voice on the tapes, explaining that she spoke to him after his
arrest for the purpose of establishing a voice identification.
A jury found Vazquez guilty of all eleven counts for which he was charged. On March 29,
2006, he was sentenced to 300 months’ imprisonment.
II. A NALYSIS
Vazquez appeals his conviction, arguing that (1) Trautmann’s description of the court-
authorized wiretaps violated his right to due process; (2) the process by which Trautmann
identified Vazquez’s voice was unreliable and unduly suggestive; and (3) Vazquez’s waiver
of court-appointed counsel was constitutionally invalid because the district court’s warnings
No. 06-2109 Page 3
were deficient.1 We find no merit in these arguments, which we discuss in turn.
A. Trautmann’s Explanation of the Court-Authorized Wiretaps
While testifying, Trautmann described the FBI’s use of court-approved wiretaps.
Trautmann noted that investigators had identified Vazquez as a cocaine supplier through a
wiretap of co-defendant Juan Jiminez’s phone. She then stated that after identifying numerous
phones used by Vazquez, they “applied for and received approval to monitor those
telephones.” Finally, she testified that they had then used so-called roving wiretaps, which
authorized the FBI to monitor any conversation of a specified individual, rather than a certain
phone number. Trautmann stated:
After going up on the several phones . . . that we had gone up on using regular
wiretaps, we were not having a lot of success intercepting Mr. Vazquez because
we were kind of always a step behind him, because he would use the phone for
a short period of time and then move on to another phone. So what we were
able to show the chief judge is that this technique is one way that individuals
involved in criminal activity attempt to avert or thwart law enforcement
monitoring. So based on that we applied for and received a roving
authorization.
Vazquez claims the district court erred in allowing this testimony, relying on United States
v. Cunningham, 462 F.3d 708 (7th Cir. 2006). Because Vazquez did not object to the testimony
during trial, we review for plain error. United States v. Gray, 410 F.3d 338, 345 (7th Cir. 2005).
In Cunningham, we reversed a defendant’s conviction where the district court allowed the
government to engage in extensive questioning regarding the process for receiving authority
to wiretap telephones. 462 F.3d at 713-15. In that case, the government’s witness went into
extraordinary detail, describing the various levels of government approval that were required
before wiretaps could be authorized. See id. at 710-12. We held that such elaborate testimony
was not relevant. Id. at 712. Instead, “[t]he obvious purpose of the evidence was to show the
jury there were several senior government attorneys and agents who all believed there was
probable cause that the defendants were involved in a drug conspiracy, and, indirectly, that
they all believed . . . the defendants were in fact committing drug-related crimes.” Id. at 713.
Thus, the government had “piled on needless, unfairly prejudicial evidence that may have
affected the jury’s judgment.” Id.1
Vazquez raises several additional arguments, but they are frivolous and do not
merit further discussion.
No. 06-2109 Page 4
Agent Trautmann’s testimony was nowhere near as extensive as the improper testimony
in Cunningham. Trautmann merely stated that they had obtained approval to tap Vazquez’s
phones without describing in detail the various levels of approval this process entailed. She
described why they had applied for a roving authorization, but with nothing to intimate to the
jury that multiple government agents believed there was probable cause. The purpose of this
testimony was clearly a legitimate one—to describe to the jury how they came upon Vazquez
as a subject of investigation and why they needed the wiretaps to apprehend him. This is in
stark contrast to Cunningham, where the only plausible motive behind the testimony elicited
by the government was a back-door method to convince the jury that the defendant was a drug
dealer. See id. Thus, the district court did not err in allowing these brief, undetailed comments
regarding the wiretap approval procedure.
B. Trautmann’s Voice Identification
As his next basis for appeal, Vazquez argues that Agent Trautmann’s testimony identifying
Vazquez’s voice on the wiretaps violated his right to due process. To succeed on this claim,
Vazquez must show that the identification procedure was “‘so impermissibly suggestive as
to give rise to a very substantial likelihood of irreparable misidentification.’” United States v.
Williams, 522 F.3d 809, 810 (7th Cir. 2008) (quoting Simmons v. United States, 390 U.S. 377, 384
(1968)). In analyzing this question, we employ a two-pronged analysis: (1) the defendant must
show that the procedure was unduly suggestive; and (2) if it was, we must determine whether
the identification was nonetheless reliable. United States v. Griffin, 493 F.3d 856, 865 (7th Cir.
2007). It is well established that “reliability is the linchpin in determining the admissibility of
identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114 (1977). Thus, we must
examine whether, under the totality of the circumstances, the identification was reliable. Neil
v. Biggers, 409 U.S. 188, 199-200 (1972).
First, Vazquez claims that Trautmann’s identification procedure was unduly suggestive
because she knew that Vazquez had been arrested, there was only one witness available for
identification, and Trautmann admittedly spoke with Vazquez with the goal of making a voice
identification. We disagree. The process by which Trautmann identified Vazquez’s voice is
common police procedure, and Vazquez has cited no case in which we have held that such a
procedure violated a defendant’s due process rights. In fact, we recently held that an FBI
agent’s identification of a defendant’s voice on a wiretap did not violate due process, even
where the agent knew the defendant would soon be arrested and had spoken with the
defendant for the sole purpose of making an identification. See United States v. Recendiz, 557
F.3d 511,527-28 (7th Cir. 2009).
Furthermore, even if the procedure used were unduly suggestive, it was reliable.
Trautmann had listened to hundreds of hours of recorded conversations before making the
identification. Moreover, her identification was corroborated by other evidence. In one
No. 06-2109 Page 5
recorded conversation, Vazquez mentioned his home address and birthday, and the FBI’s
surveillance linked him to the conversations. Jiminez also corroborated Trautmann’s
identification during his trial testimony. Trautmann’s identification was therefore reliable.
C. Vazquez’s Waiver of Counsel
Finally, Vazquez contends that he was deprived of his Sixth Amendment right to the
assistance of counsel because the district court failed to explain the Sentencing Guidelines or
list the elements of the charges against him while explaining the dangers of proceeding pro se.
“Every criminal defendant has an absolute right to defend himself if his decision to do so is
knowing, intelligent and voluntary.” United States v. Avery, 208 F.3d 597, 603 (7th Cir. 2000).
Before making this decision, a defendant “should be made aware of the dangers and
disadvantages of self-representation, so that the record will establish that he knows what he
is doing and his choice is made with eyes open.” Faretta v. California, 422 U.S. 806, 835 (1975)
(quotations omitted). Because the trial judge is in the best position to assess whether a
defendant has knowingly and voluntarily waived his right to counsel, United States v.
Berkowitz, 927 F.2d 1376, 1383 (7th Cir. 1991), our review is for abuse of discretion, United States
v. Johnson, 534 F.3d 690, 693-94 (7th Cir. 2008).
Here, it is clear that Vazquez’s choice was made with “eyes open.” The district judge
examined Vazquez’s competency to understand the waiver, admonished him at length about
the dangers of pro se representation, and informed him that he could spend the rest of his life
in jail. This is sufficient to inform Vazquez of the gravity of his decision. We have previously
held that courts are not required to administer a specified litany of questions or explain the
Sentencing Guidelines to a defendant. United States v. Hill, 252 F.3d 919, 928 (7th Cir. 2001).
In addition, although a court must explain the elements of the charges to a defendant who is
pleading guilty, Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005), this rule has never been applied
to a waiver of counsel. Thus, the court did not err in failing to explain the Guidelines or the
elements of the charges, and Vazquez’s waiver was knowing and voluntary.
III. C ONCLUSION
The judgment of the district court is A FFIRMED.