United States v. Ceballos, Alfredo ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-1611 & 02-2725
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALFRED CEBALLOS and JOSE A. TREJO-PASARAN,
also known as Tony,
Defendants-Appellants.
____________
Appeals from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 00 CR 26—Richard L. Young, Judge.
____________
ARGUED MAY 28, 2004—DECIDED OCTOBER 13, 2004
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Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. In the early months of April 2000,
the Drug Enforcement Administration (DEA) was conduct-
ing an investigation into a methamphetamine ring in
Southern Indiana. During the course of the investigation, the
DEA learned of a simultaneous, but separate conspiracy
involving a number of individuals in Southern Indiana. The
DEA applied for and obtained authority to wire-tap telephone
messages made from five target phones during the period
from April 3, 2000 through June 16, 2000. During the wire
2 Nos. 02-1611 & 02-2725
surveillance, the DEA intercepted numerous drug-related
conversations and later seized 800 pounds of marijuana.
Based upon evidence obtained from the wire surveillance,
the seizure of the marijuana, and the testimony of several
cooperating witnesses, the government indicted 27 defen-
dants. Two of the defendants, Alfred Ceballos and Jose
Trejo-Pasaran, proceeded to trial on charges of drug traf-
ficking and related crimes. The jury convicted both defendants
of all of the charges contained in the indictment. Ceballos
and Trejo-Pasaran appeal their convictions. The defendants
argue: (1) that the district court committed error when it
found that Ceballos’ statements at the time of his arrest
were voluntary, (2) that the district court abused its dis-
cretion in admitting the testimony of Special Agent Michael
Kress with respect to his interpretation of drug code lan-
guage, (3) that the district court was in error in finding that
law enforcement agents did not violate the defendants’
Fourth Amendment rights by interviewing them about book-
ing information, and (4) that the district court abused its
discretion in permitting the use of transcripts of the inter-
cepted telephone conversations with identifying names in
the margins of the transcripts. For the reasons stated
herein, we affirm the convictions and sentences of Ceballos
and Trejo-Pasaran.
ANALYSIS
A. Alfred Ceballos’ Motion to Suppress his Oral Con-
fession
On November 13, 2001, Ceballos filed a motion to sup-
press an oral confession that he provided to law enforcement
on August 10, 2001. The motion to suppress was identical
to a motion to suppress filed in a companion methamphet-
amine trafficking case. Based on its own ruling in the
companion case, the district court denied the motion. This
court upheld the district court’s denial of Ceballos’ motion
Nos. 02-1611 & 02-2725 3
to suppress in the methamphetamine trafficking case in
United States v. Ceballos, 302 F.3d 679, 686 (7th Cir. 2002),
cert. denied, 537 U.S. 1136 (2003) (Ceballos I). For the
reasons stated in Ceballos I, we affirm the district court’s
denial of Ceballos’ motion to suppress his confession.
B. Expert Witness Testimony
Next, the defendants argue that the district court abused
its discretion in admitting the testimony of Special Agent
Michael Kress with respect to his interpretation of drug
code language. At trial, the government qualified Agent Kress
as an expert concerning the interpretation of drug code lan-
guage. The district court permitted Agent Kress to interpret
drug code language used during intercepted conversations.
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 597 (1993), the district court should be a “gate-
keeper” and determine whether the proffered expert testimony
is reliable and relevant before accepting a witness as an
expert. As we stated in Ceballos I, when a defendant chal-
lenges the district court’s acceptance or rejection of expert
testimony, we review de novo whether the testimony was
reliable and relevant. If the testimony was reliable and
relevant, we review the district court’s decision to admit or
exclude the testimony for an abuse of discretion. Id.Ceballos and Trejo-Pasaran argue that the district court
erred in admitting Kress’ testimony because he did not par-
ticipate in the actual conversations, the intercepted telephone
conversations occurred in Spanish, and the code language
included simple pronouns such as “it,” “both,” and “them.”
In Ceballos I, the government outlined Agent Kress’ ex-
perience with conducting wiretap investigations. We ruled
that the district court did not abuse its discretion in qualifying
Agent Kress as an expert and permitting him to interpret
code language. We noted that his lack of fluency in Spanish
4 Nos. 02-1611 & 02-2725
should not prohibit him from relying upon English transla-
tions to interpret drug code language spoken in Spanish and
the district court did not abuse its discretion in permitting
Agent Kress to offer his opinion on the meaning of the sim-
ple pronouns, because the speakers used the pronouns in an
ambiguous manner and Agent Kress had vast experience
with interpreting drug code language. Id. at 688.
As in Ceballos I, the government in the present case
developed Agent Kress’ qualifications through testimony and
the district court qualified him as an expert witness. The
district court permitted Agent Kress to interpret drug code
language used during intercepted telephone conversations
even though the conversations needed to be translated from
Spanish to English by a bilingual interpreter. And, as in
Ceballos I, we agree with the district court.
C. Identification of Defendants’ Voices During Post-
Arrest Interviews
After Ceballos and Trejo-Pasaran were arrested, a Spanish
speaking interpreter, Gloria Rendon, interviewed the defen-
dants in Spanish and asked them the questions necessary
to complete booking forms. Based upon these interviews,
Rendon compared the voices of Ceballos and Trejo-Pasaran
with voices that she had heard during the wire surveillance.
Rendon also identified Trejo-Pasaran’s voice on a seized
audio tape.
The defendants argue that the district court committed
clear error in finding that law enforcement agents did not
violate Ceballos and Trejo-Pasaran’s Fourth Amendment
rights by interviewing them for booking information. To assert
a Fourth Amendment claim, an appellant must establish a
legitimate expectation of privacy. United States v. Torres,
32 F.3d 225, 230 (7th Cir. 1994). Obtaining physical evi-
Nos. 02-1611 & 02-2725 5
dence from a person may involve a Fourth Amendment
violation at two levels. United States v. Dionisio, 410 U.S.
1, 8 (1973). These two levels include the seizure of the per-
son and the search and seizure of evidence. Id.In this case, both defendants were arrested pursuant to
valid arrest warrants. Because law enforcement legally took
both into custody, no Fourth Amendment violation occurred
with respect to the initial seizure of their persons. United
States v. Sechrist, 640 F.2d 81, 85 (7th Cir. 1981) (finding no
Fourth Amendment violation where the appellant was
detained pending trial.); United States v. Iacullo, 226 F.2d
788, 792-93 (7th Cir. 1955) (finding no Fourth Amendment
violation where fingerprints were taken after a valid arrest
and were used to compare with fingerprints on newspapers
used to wrap narcotics).
The subsequent evaluation of the defendants’ voices did
not violate the Fourth Amendment. The United States
Supreme Court has held that people do not have a reasonable
expectation of privacy in their voices. Dionisio, 410 U.S. at
14. Moreover, federal courts have consistently recognized
that law enforcement officers may question an arrested
person to collect booking information incident to processing
him or her for arrest and custody. United States v. Kane,
726 F.2d 344, 349 (7th Cir. 1984).
In addition, the comparison of the defendants’ voices with
those on the tapes falls within the “plain hearing” exception
to the search warrant requirement. The plain view exception
to the search requirement applies where an officer is: (1)
lawfully present, (2) sees something in plain view not named
in the warrant, and (3) whose incriminating nature is
immediately present. United States v. Bruce, 109 F.3d 323,
328 (7th Cir. 1997). We have recognized that the plain view
doctrine applied in the context of overheard speech, creating
a “plain hearing” doctrine. United States v. Ramirez, 112
F.3d 849, 851 (7th Cir. 1997). Because the defendants did
6 Nos. 02-1611 & 02-2725
not have a reasonable expectation of privacy in their voices
during their booking interviews, their voices fall within the
exception of the plain hearing exception to the search
warrant requirement; the district court did not err in
finding their Fourth Amendment claim invalid.
D. Use of Transcripts Bearing Speakers’ Names in
Margins
Finally, the defendants argue that the district court erred in
admitting transcripts with the names of the speakers writ-
ten in the margins and then allowing the jury to use the
transcripts during their deliberations. At trial, the govern-
ment presented the testimony of lay witnesses to identify
voices heard in intercepted conversations. Agent Kress
identified Ceballos’ voice based upon his personal interview
with Ceballos. Gloria Rendon, the Spanish interpreter,
identified Ceballos’ voice based upon her personal interview
with Ceballos. Rendon identified Trejo-Pasaran based upon
her review of an audio tape of his voice and her interview
with him. The government played the intercepted conversa-
tion during the trial and introduced English transcripts of
the conversation which identified the speakers in the
margins. The district court specifically instructed the jury
that the defendants contested their voice identifications.
In United States v. Breland, we held there was no abuse
of discretion when the district court permitted transcripts
with names in the margins to go with the jury during delib-
erations because the court had specifically instructed the
jury that identities of the speakers were contested. 356 F.3d
787, 794-95 (7th Cir. 2004). In this case, the district court
properly instructed the jury and so there was no abuse of
discretion.
For the reasons stated herein, we AFFIRM.
Nos. 02-1611 & 02-2725 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-13-04