United States v. Jesus Malagon ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3200
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JESUS MALAGON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 CR 326 — Elaine E. Bucklo, Judge.
____________________
ARGUED NOVEMBER 8, 2019 — DECIDED JULY 9, 2020
____________________
Before SYKES, Chief Judge, and RIPPLE and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. A jury convicted Jesus Malagon of
conspiracy with intent to distribute cocaine and possession of
cocaine with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1).
The district court imposed a below-Guidelines sentence of 60
months’ imprisonment, which reflected the statutory mini-
mum. Malagon now appeals the conviction, arguing that the
district court improperly admitted testimony, which tainted
2 No. 18-3200
the conviction. He asserts that absent the improperly admit-
ted testimony, there was insufficient evidence to support the
conviction.
At trial, the government introduced cell phone records,
audio and video recordings and their transcripts, as well as
witness testimony, including from undercover officers. The
evidence centered around two meetings which took place at
the home of Edilberto Ramirez-Sanchez. The first occurred on
May 11, 2017. In recorded telephone conversations prior to
that meeting, Ramirez-Sanchez told the informant that his
“buddy” would arrive in ten minutes. Tr. Transcript Vol. 1 at
R. 127, p. 88. Ramirez-Sanchez agreed with the informant’s
request that he call the informant when he had the “part,” and
later that day did so, telling the informant that he had “al-
ready opened the part” and would wait for the informant at
his home. Id. at 92. The informant and DEA Task Force Officer
Mario Elias met Ramirez-Sanchez at his home, and Ramirez-
Sanchez took them into his garage and showed them a half a
kilogram of cocaine. Ramirez-Sanchez told them he was going
to bring “one,” but was told they wanted “half,” so his
“buddy” split it, and said “[h]ey, look at the quality.” Id. at
114. They discussed a price of $18,000 for the “half” or $34,000
for a “whole one.” Id. at 106. Ramirez-Sanchez engaged in
phone calls with the defendant both before and after that
meeting.
The second meeting that formed the crux of the case
against Malagon occurred at Ramirez-Sanchez’ residence on
May 17, 2017, involving a transaction for two kilograms of co-
caine. Prior to that meeting, the informant again engaged in a
number of recorded telephone conversations with Ramirez-
Sanchez confirming that his “buddy” was ready and the “two
No. 18-3200 3
parts” were already ready, and with Ramirez-Sanchez seek-
ing confirmation from the informant that he had “everything
ready … all the tickets.” Id. at 152. The informant and DEA
Task Force Officer Angel Amador, posing as Elias’ partner,
arrived at the Ramirez-Sanchez residence at around 4:00 in
the afternoon, and Malagon was waiting there in the back-
yard. Malagon told them “don’t worry, twenty minutes,” and
when Amador expressed frustration at the wait, Malagon re-
sponded that the next time he would know that they are safe
or trusted people and would have “the cars ready” so that
Amador could “arrive, check it, and leave.” Id. at 173–74, 176,
178, 181–83. At one point, Malagon received a phone call and
following the call he told Amador that he “called all the way
down right now,” that he “called to little Mexico, to make sure
that this happens, that this doesn’t fail.” Id. at 188.
After waiting for another hour, Amador again complained
about the delay, and he and the informant left temporarily to
get food. After they left, surveillance officers saw Malagon
leave the residence in a black Toyota. DEA Task Force Officer
Donald Stone followed him and observed Malagon driving in
a zig-zagging pattern. At one point, Malagon pulled over, en-
gaged his hazard lights, and opened the trunk of his car. He
then walked to the front of the car with a blue and white
cooler, lifted the hood of the car, and then closed the hood and
placed the cooler in the trunk of the car. Immediately follow-
ing those actions, he drove back to Ramirez-Sanchez’ resi-
dence, removed the cooler from the trunk of the car, and
brought the cooler into the residence. Ramirez-Sanchez called
the informant at the restaurant and the informant and Ama-
dor returned to the residence. Malagon led Amador, the in-
formant, and Ramirez-Sanchez into the garage, and in the gar-
age they observed two kilograms of cocaine on a table
4 No. 18-3200
wrapped in blue and gray tape. The informant wore an audio-
video recording device which captured the defendant at var-
ious points. Inside the garage, Malagon handled the kilogram
packaging and stated “there it is,” “what I say? what I say?,”
and told them it was “guaranteed” and that “if you have any
problem, you all come and tell me what you want.” Id. at 194,
196–98. Malagon then told them he would leave them there
and to “call me when you have the money.” At that point,
surveillance officers moved toward the garage. Hearing them,
Malagon tried to hide the cocaine by the wall. Officer Stone
who entered the garage observed the kilograms against the
garage wall and the blue cooler that Malagon had previously
been observed carrying. They arrested Malagon, and on one
of his cell phones that they seized, they found a photograph
of the two kilograms of cocaine with blue tape.
Malagon argues that DEA Agent Reynolds was improp-
erly allowed to present expert testimony as to drug trafficking
practices and the use of drug code, and that DEA Task Officer
Amador was improperly allowed to present lay opinion testi-
mony. He asserts that, absent the problematic testimony, the
evidence against him was largely circumstantial and would
not necessarily have resulted in a conviction.
Prior to trial, the government informed the court and de-
fense counsel that it intended to call a drug trafficking expert
to testify about use of coded language, the price of cocaine in
the Chicago area, and common tactics used by drug traffick-
ers. Malagon filed a motion in limine seeking to bar any law
enforcement witness from testifying as to unrecorded conver-
sations outside their direct observations but raised no other
objection to the testimony and never objected to the expert
witness testimony by Reynolds. Accordingly, we review the
No. 18-3200 5
objection on appeal only for plain error. Under the plain error
standard, Malagon must demonstrate an error that was not
intentionally waived, which was plain and affected his sub-
stantial rights, and that the error affects the fairness, integrity
or public reputation of the judicial proceedings. United States
v. Thomas, 897 F.3d 807, 812 (7th Cir. 2018). Malagon’s chal-
lenge to Reynolds’ testimony cannot meet that standard. In
fact, he fails to meet the first requirement—that of demon-
strating that an error occurred.
Malagon points out that in United States v. Mamah, 332 F.3d
475, 478 (7th Cir. 2003), we recognized that “[i]t is critical un-
der [Federal Rule of Evidence] 702 that there be a link be-
tween the facts or data the expert has worked with and the
conclusion the expert’s testimony is intended to support.” See
also Smith v. Illinois Dep't of Transportation, 936 F.3d 554, 559
(7th Cir. 2019). Malagon argues that the district court erred in
allowing Reynolds to testify as to the meaning of code words
based on his experience as a law enforcement officer, without
requiring Reynolds to explain his methodology and link his
conclusions to his experience. “We have routinely held that
‘narcotics code words are an appropriate subject for expert
testimony.’” United States v. York, 572 F.3d 415, 421, (7th Cir.
2009), citing United States v. Farmer, 543 F.3d 363, 370 (7th Cir.
2008). According to Malagon, however, Reynolds “never once
pointed to his training or experience as a basis for his conclu-
sion that certain words in the transcripts actually meant co-
caine, let alone explained how his experience led to the con-
clusions that he reached.” Appellant’s Brief at 24. That is not
an accurate representation of Reynolds’ testimony. Reynolds
testified as to the use of code language by drug traffickers,
explaining that very rarely will drug traffickers use the term
“cocaine.” Tr. Transcript Vol. 2 at R. 128, p. 325. Instead, he
6 No. 18-3200
noted that they routinely substitute code words to reference
drugs and drug quantities in order to conceal their activities
because they recognize the potential that the conversations
are being recorded. Id. Reynolds testified that in his work as a
special agent and group supervisor, he was involved in hun-
dreds of narcotics-related investigations and was familiar
with codes used in such transactions and with drug prices in
the Chicago area. Id. at 327. Reynolds testified how the context
of the language used in the conversation over the course of
the investigation can indicate that the words are drug code,
and that such words can vary such as the buyer or seller ask-
ing for “work”—where “work” references drugs—or refer-
ring to instruments such as guitars to represent drugs. Id. at
340. Reynolds noted, for instance, that in one investigation the
person repeatedly discussed “guitars, and they were watch-
ing the person and knew he was not a musician or guitar
teacher, and over time it became apparent that the word “gui-
tar” was code for drugs—which was further confirmed when
they seized a kilogram of cocaine which had the imprint of a
guitar on it. Id. at 340–41. He noted that code words were also
used to discuss the price of narcotics, including the same
words such as “work,” or other words such as “tickets” or
“dough.” Id. at 341. Similarly, in discussing the quantity of
narcotics to be sold, he testified that in his experience they
typically would use words like “work,” “pieces,” or “parts”
to refer to kilograms. Id. at 342. He then testified that he read
the transcripts of the conversations in this case, and that based
on his training and experience, he formed the opinion that the
parties were discussing narcotics. Id. at 343. He specifically
noted that the word “part” was used for drug code to refer-
ence narcotics being delivered. Id. at 344–45. He pointed to
factors such as the repetition of the word, referring to the
No. 18-3200 7
same thing over and over, and the context of the word. Id. at
346. As to the context, for instance, Reynolds noted that in the
conversation the statement “I already … opened the part and
it’s, yes, yes, it’s that one, the one I tell you,” used language
that he typically hears as far as kilogram quantities where it
is opened to verify the quality of the narcotics. Id. Similarly,
he concluded that the query ”[d]o you already have every-
thing … ready, all arranged? All the tickets?” was drug code
in that “tickets” referenced the payment for the narcotics. Id.
at 347. Malagon mistakenly believes that Reynolds’ opinion is
not based on his training and experience because he relies on
the context and recurrence of words in determining whether
they reflect drug code, but Reynolds testified that based on
his training and experience, the context and recurrence are
used in determining whether the words are drug code. Just as
the repeated discussion of “guitars” by a person with no ap-
parent connection to musical instruments indicated an alter-
native meaning for the word, the repeated discussion of the
delivery of parts and cars in this case signaled drug code
where the context and surrounding language mirrored that of
drug transactions, and the recurrence indicates that the refer-
ence is to something other than actual automotive-related
transactions. The argument here—that Reynolds “never once
pointed to his training or experience as a basis for his conclu-
sion that certain words in the transcripts actually meant co-
caine, let alone explained how his experience led to the con-
clusions that he reached”—is belied by Reynolds’ trial testi-
mony in the record.
Malagon’s other evidentiary challenge is also unavailing.
He asserts that the district court improperly admitted the
opinion testimony of Amador even though he was a lay wit-
ness and not an expert witness, in contravention of Federal
8 No. 18-3200
Rule of Evidence 701. Rule 701 provides that “[i]f a witness is
not testifying as an expert, testimony in the form of an opinion
is limited to one that is: (a) rationally based on the witness's
perception; (b) helpful to clearly understanding the witness's
testimony or to determining a fact in issue; and (c) not based
on scientific, technical, or other specialized knowledge within
the scope of Rule 702.”
Malagon challenges Amador’s testimony relating to the
meaning of words Malagon used in a conversation with Ama-
dor, including, for instance, the word “cars” as referring to
kilograms of cocaine and “next time” as meaning the next or-
der for cocaine. Amador’s understanding of the meaning of
the words used in those conversations to which he was a
party fall within the proper scope of lay testimony, and there
was no error in allowing the admission of the testimony.
Malagon argues that, as we recognized in United States v. Gay-
tan, 649 F.3d 573 (7th Cir. 2011), a law enforcement officer’s
testimony is a lay opinion if limited to that officer’s observa-
tions or other facts derived exclusively from a particular in-
vestigation, whereas it is expert testimony if the officer brings
the wealth of his experience as an officer to bear on those ob-
servations and makes connections based upon that special-
ized knowledge. See id. at 582, citing United States v. Oriedo,
498 F.3d 593, 603 (7th Cir. 2007). In Gaytan, the officer testify-
ing was not a party to the conversation but rather listened to
a recording of the conversation, and we held that his famili-
arity with the terminology could have been attributable to the
Gaytan investigation in particular or to his training and expe-
rience as a narcotics officer in general. Id. In contrast, Amador
testified as to the meaning of the words used in a conversation
between himself and Malagon. As a party to the conversation,
his testimony as to the meaning of the words used by the
No. 18-3200 9
parties in the conversation falls within Rule 701 as lay testi-
mony in that it is rationally based on his perception as a wit-
ness and helpful to understanding his testimony and deter-
mining a fact in issue. Nothing in his testimony indicates that
his testimony is based on specialized knowledge, as opposed
to his understanding of the conversation as a participant in it.
Because there is no basis to conclude that Amador provided
expert as opposed to lay testimony, Malagon has failed to
demonstrate that the district court committed plain error in
allowing such testimony.
We note that, even if Malagon had succeeded in establish-
ing plain error, any such error would be harmless. The chal-
lenged testimony addressed whether Malagon was referring
to cocaine in his discussions, but any possible ambiguity as to
whether the words referred to a narcotics deal was set to rest
when Malagon brought Amador and the informant into the
garage to reveal the two kilograms of cocaine and referred to
it as the promised delivery.
The decision of the district court is AFFIRMED.