United States v. Ron Collins ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3098
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
R ON C OLLINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cr-00673-1—Virginia M. Kendall, Judge.
A RGUED A PRIL 1, 2013—D ECIDED M AY 15, 2013
Before B AUER, K ANNE, and T INDER, Circuit Judges.
B AUER, Circuit Judge. Ron “Ron Ron” Collins partic-
ipated in a drug-distribution conspiracy stretching from
Mexico to Milwaukee that involved mass amounts of
cocaine. For his role, Collins was found guilty of con-
spiracy to possess with intent to distribute and
to distribute five kilograms or more of cocaine, in viola-
tion of 21 U.S.C. § 846, and sentenced to a prison term
of 360 months. Collins challenges both his conviction
2 No. 11-3098
and the sentence imposed. He contends, first, that the
district court improperly admitted into evidence certain
tape recordings at trial, and second, that the district
court erred in allowing an expert to testify regarding
“coded drug-dealing language” on the tapes. He
also argues that the district court erred in applying
the “manager or supervisor” enhancement pursuant to
U.S.S.G. § 3B1.1. Finding all of Collins’ contentions unper-
suasive, we affirm.
I. BACKGROUND
From at least 2005 to November 2008, Collins acted as
a linchpin in a large drug-distribution conspiracy based
in Mexico. Collins had two connections in Mexico—the
Flores twins, Pedro and Margarito—who were his
sources for his drug of choice, cocaine. Whenever
Collins needed cocaine to deal, he contacted the Flores
twins, who contacted their drug couriers, who in turn
would deliver the necessary drugs to Collins in the
Chicagoland area. A given delivery to Collins sometimes
included 20 to 50 kilograms of cocaine, and the
Flores twins often “fronted” the drugs or had them de-
livered to Collins on “credit.”
Upon receipt of the cocaine, Collins would sell it to
the members of his “crew.” Collins made a profit of
approximately $1,500 per kilogram sold; that is how he
made the money needed to pay back the Flores twins.
The members of Collins’ crew sold the cocaine to other
lower-level buyers on the streets. This cycle repeated
as fast as the cocaine could be sold.
No. 11-3098 3
One crew member to whom Collins repeatedly sold
cocaine was Robert Gregory, a Milwaukee, Wisconsin
native. Collins first met Gregory in early 2006 at Lee’s
Auto Shop in Chicago, Illinois. It was then that Collins
asked Gregory about selling cocaine and whether he
would purchase cocaine from Collins to sell to other
buyers in Milwaukee; Gregory agreed to do so be-
cause Collins offered “a good price.” This solidified
their relationship, and for the next three years, Collins
provided Gregory with cocaine to sell in Milwaukee.
However, all of their transactions occurred in the
Chicagoland area and at Collins’ direction. By the end
of the conspiracy, Collins was providing Gregory with
four kilograms of cocaine approximately every two
to three weeks.
In the fall of 2008, Pedro and Margarito Flores
agreed to cooperate with the Drug Enforcement Admin-
istration’s (DEA’s) investigation of drug trafficking be-
tween Mexico and the United States. DEA Special
Agent Eric Durante was the lead case agent in the
relevant investigation. That put him in contact with
Pedro, to whom he periodically spoke with on the phone
from August to November 2008.
On November 6, 2008, Agent Durante had a meeting
with Pedro in Mexico. At that time Agent Durante in-
structed Pedro to record his telephone conversations
with “drug suppliers and drug customers” when it
was safe to do so. Shortly thereafter, Pedro provided
the government with numerous tape recordings, some
of which included conversations between him and
Collins (as we discuss in more detail below).
4 No. 11-3098
On August 6, 2009, Collins was indicted on one count
of conspiracy to possess with intent to distribute and
to distribute five kilograms or more of cocaine and one
kilogram or more of heroin, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. The reference to heroin was
stricken on May 26, 2011, and the case proceeded to trial.
At trial, the government moved to admit three of
Pedro Flores’ November 2008 taped conversations with
Collins. The district court granted the government’s
request over Collins’ objection that the tapes lacked an
adequate foundation. With the tapes admitted into evi-
dence, the government called Officer Robert Coleman
to testify regarding the “coded drug-dealing language”
on the tapes. Collins did not object to the testimony’s
admissibility at the time but now contends the testi-
mony was improper.
The jury returned a verdict of guilty, and on September 7,
2011, the district judge sentenced Collins to 360 months’
imprisonment, followed by five years of supervised
release. This sentence was at the lower end of the
U.S. Sentencing Guidelines, which called for a term of
360 months to life. The Guidelines range the judge
applied included an enhancement under U.S.S.G. § 3B1.1
because the judge determined that Collins’ conduct
in the conspiracy qualified him as a “manage or super-
visor.” Collins objected to the enhancement.
II. DISCUSSION
Collins’ appeal focuses on three errors he believes
the district court made: (1) admitting into evidence the
No. 11-3098 5
November 2008 taped conversations between him and
Pedro Flores; (2) allowing the government expert to
testify regarding the “coded drug-dealing language”
on the tapes; and (3) determining he was a “manager
or supervisor” pursuant to U.S.S.G. § 3B1.1 and in-
creasing the applicable Sentencing Guidelines range.
We address each argument in turn.
A. Tape Recordings
The district court admitted into evidence three tape
recordings of calls that were purportedly between
Pedro Flores and Collins. (Collins contended he
was not on the recording.)1 One recording was made
on November 25, 2008, at 12:23 p.m.; the second on
November 29, 2008, at 1:59 p.m.; and the third
on November 30, 2008, at 12:13 p.m. On each of the re-
cordings, Pedro discussed various information regarding
the cocaine-distribution scheme with the “speaker,”
including prices, quantities, quality of drugs, and the
use of other people to distribute the goods. Each
recording was made outside the presence of govern-
ment agents.
Collins contends the tape recordings were improp-
erly admitted because the government failed to lay a
1
All three of the tapes were played at trial, and the jury
was provided with a transcript of each call. A re-
cording of Collins’ voice from the McHenry County jail
was also obtained and played at trial, so the jury could
make its own voice comparison.
6 No. 11-3098
proper foundation under Federal Rule of Evidence 901.
Rule 901(a) requires a party seeking to admit an item
into evidence at trial to “produce evidence sufficient
to support a finding that the item is what the
proponent claims it is.” For tape recordings, this can
be done in two ways: (1) a chain of custody demon-
strating the tapes are in the same condition as when
they were recorded, or (2) testimony demonstrating
the accuracy and trustworthiness of the tapes. United
States v. Thomas, 294 F.3d 899, 904 (7th Cir. 2002); see
United States v. Eberhart, 467 F.3d 659, 667 (7th Cir. 2006).
District courts are given wide latitude in determining
whether the burden has been met, so we review this
determination for an abuse of discretion. Id.
In this case, the government satisfied its burden
under both methods of proof. Beginning with the chain
of custody: Agent Durante, who was stationed in
Chicago, and Agent Jake Galvan, who was stationed
in Guadalajara, Mexico, testified at length regarding
the tapes’ history and how Agent Galvan shipped the
tapes to Agent Durante once he received them
and the tape recorder from Pedro. They described their
communications with Pedro in November and Decem-
ber 2008 and their instructions to him regarding when
and how to record his conversations with “drug
suppliers and drug customers” and to deliver the tapes
to the government. They testified that upon receiving
the tapes, they labeled them, copied them, and down-
loaded their contents. They also testified that the
tapes never left the government’s possession after
the moment of receipt. See Thomas, 294 F.3d at 905
No. 11-3098 7
(“[I]f the tapes were in official custody at all times, a pre-
sumption arises that the tapes were handled properly.”).
Collins argues this evidence was insufficient to
establish a proper chain of custody because the
agents’ testimony “[did] nothing to answer the lingering
questions of the whereabouts of the [recording] device
while it was in Mexico.” It is this argument, however,
that lacks an adequate foundation. We acknowledge that
Flores did not testify at trial and that no government
agents were present when Flores made the recordings,
but merely raising the possibility of tampering is not
sufficient to render evidence inadmissible. Id.; see United
States v. Wilson, 973 F.2d 577, 580 (7th Cir. 1992) (ex-
plaining that a defendant’s contention that certain
tape recordings were not authentic because they did not
remain “in the sole custody of the government” was
meritless). The government is only required to demon-
strate that it took “reasonable precautions” in preserving
the evidence; it is not required to “exclude all possibil-
ities of tampering.” United States v. Moore, 425 F.3d
1061, 1071-72 (7th Cir. 2005). We think the government’s
procedures in obtaining the tape recordings and
preserving their accuracy were reasonable in light of
the circumstances surrounding this case—it would be an
impossible standard to always require agents to be
present when a tape recording is made, especially in
foreign countries. See United States v. Fuentes, 563 F.2d
527, 532 (2d Cir. 1977) (“There is no requirement that
the tapes be put in evidence through the person
wearing the recorder, or for that matter, through a con-
temporaneous witness to the recorded conversations.”).
8 No. 11-3098
Any possible, however hypothetical, gap in the chain
of custody goes to the weight of the evidence, not its
admissibility. See, e.g., United States v. Tatum, 548 F.3d
584, 587-88 (7th Cir. 2008) (“The government does not
need to prove a ‘perfect’ chain of custody, and any gaps
in the chain ‘go to the weight of the evidence and not
its admissibility.’ ” (quoting United States v. Scott, 19
F.3d 1238, 1245 (7th Cir. 1994)).
Moreover, the government provided ample circum-
stantial evidence supporting the tapes’ accuracy and
trustworthiness. One example is voice identification.
Federal Rule of Evidence 901(b)(5) permits a witness
to identify a person’s voice on a recording “based on
hearing the voice at any time under circumstances
that connect it with the alleged speaker.” This is not
a very high bar. See United States v. Mendiola, 707
F.3d 735, 740 (7th Cir. 2013) (collecting cases).
Agent Durante testified that he became familiar with
Collins’ voice during a forty-five minute interview
with Collins, and because o f that, he was able to
identify Collins as one of the speakers on the Novem-
ber 2008 recordings. Likewise, Agent Patrick Bagley
testified that he became familiar with Collins’
voice after listening to over twenty recordings of
Collins speaking at the McHenry County jail and was
able to use that familiarity to authenticate Collins’ voice
on the tapes. Both agents confirmed that the person on
the tapes was in fact who the government said it
was: Collins.
The government proffered additional information
showing that a timestamp on each of the November 2008
No. 11-3098 9
recordings coincided with three calls included in the
cell phone records of Pedro’s phone, which were
admitted as evidence at trial. The date, time of day, and
duration of each of the three calls matched those of
the three recordings. And the three calls were
made between Flores and a “773” Chicago area code
number that was programmed in Pedro’s phone under
the name “Ron Ron.” Cell phone records obtained later
from that “773” number revealed that the three calls
matching the dates, times of day, and durations of the
three recordings were all with the same Mexico-
based phone number. The calls were also made in con-
formance with the timeframe Flores and the speaker
discussed on the recordings. For instance, on the
first recording, Pedro told the speaker to give him
until Friday or Saturday; the speaker called him back
on Saturday, November 29, on the same day and at
the same time as the second recording. On the second
recording, Pedro told the speaker he would call
him right back. That did not occur, and on the third re-
cording—the next day, Sunday, November 30—Pedro
acknowledged forgetting to call the speaker back
the previous day, to which the speaker responded,
“I’m waiting on y’all.” We are satisfied that this infor-
mation also provided the district court with ade-
quate justification to admit the tape recordings.
B. Expert Testimony
Having determined that the tape recordings were
properly admitted, we look to whether the district
10 No. 11-3098
court appropriately allowed the government’s expert to
testify regarding the “coded language” on the tapes.
We review a district court’s decision to admit expert
testimony for an abuse of discretion. United States v.
Pansier, 576 F.3d 726, 737-38 (7th Cir. 2009). When a
party does not object at trial, however—as is the case
here—we review the admission for plain error. United
States v. Wolfe, 701 F.3d 1206, 1211 (7th Cir. 2012).
Officer Coleman provided testimony at trial that in-
terpreted the “code words” and language Collins used
on the tape recordings. The purpose of this testimony
was to link the words used with their generally-
accepted meaning in the drug-dealing community, as
the community’s cryptic vernacular is likely outside
the knowledge of the average juror. See United States
v. Avila, 557 F.3d 809, 820 (7th Cir. 2009) (“Because the
clandestine nature of narcotics trafficking is likely to
be outside the knowledge of the average layman, law
enforcement officers may testify as experts in order
to assist the jury in understanding these transactions.”
(quoting United States v. Noble, 69 F.3d 172, 183 (7th
Cir. 1995))). We need not provide an exhaustive syn-
opsis of Officer Coleman’s testimony, as a few examples
are more than sufficient to understand the gist of the
testimony we are reviewing:
Question: From your reading of the transcript and
based on your training and experience,
do you know what the reference to,
Give me 30 up front, means?
Answer: Yes.
No. 11-3098 11
Question: What does it mean?
Answer: 30 kilos on credit.
....
Question: From your reading of the transcript and
based on your training and experience,
what does the phrase, He had to break
them down, refer to?
Answer: It’s in reference to taking the kilogram
in its pure form and breaking it down
and stepping on it and mixing it with a
dilutant or a cutting agent and in order
to expand its value and make more money.
....
Question: And based on your training and experi-
ence, does paper have another meaning
in that sentence?
Answer: Yes.
Question: And what is that meaning?
Answer: Paper is a common code word for money.
Federal Rule of Evidence 704(b) provides that “an
expert witness must not state an opinion about
whether the defendant did or did not have a mental
state or condition that constitutes an element of the
crime charged or of a defense.” Collins contends that
Officer Coleman’s testimony went directly to his
“intent and knowledge” and, thus, deprived him of a
fair trial. But cutting to the core of Collins’ argument,
12 No. 11-3098
we do not see how Officer Coleman’s testimony is any
different from the expert testimony we upheld in many
cases like this one. See, e.g., United States v. Are, 590 F.3d
499, 512-14 (7th Cir. 2009) (upholding the admission
of “coded language” testimony because the expert
officer “testified based on his experience and training
in wiretap and drug trafficking investigations . . . that
he was familiar with the language and words that
‘drug dealers’ use . . . [,] that he had not interviewed
any witness in relation to the case on trial,” and that
he “had no knowledge of the facts of the case or the
allegations against the defendants.”). As in Are,
Officer Coleman was testifying based on his knowledge
of “common practices in the drug trade” and not on
“some special familiarity with the workings of [Collins’]
mind.” See United States v. Lipscomb, 14 F.3d 1236, 1241-42
(7th Cir. 1994); see also Are, 590 F.3d at 512-13 (com-
paring Officer Coleman’s testimony to the expert testi-
mony in Lipscomb). In fact, the expert officer in Are is
the same expert Collins challenges in this case. The testi-
mony was, therefore, properly admitted.
We briefly note that at the beginning of Officer
Coleman’s testimony, he stated, “29, 5 is in reference
to what Mr. Collins wants to sell the kilos for.” The use
of “Mr. Collins” in that sentence was inappropriate
because the remark went beyond Officer Coleman’s
general knowledge of coded drug-dealing terminology.
Cf. United States v. Glover, 479 F.3d 511, 516-17 (7th Cir.
2007) (upholding the admission of the expert officer’s
drug-dealer testimony because he made no references
to the defendant’s “intent”). But Collins’ counsel’s ob-
No. 11-3098 13
jection to the use of “Mr. Collins” was sustained, and
thereafter, Officer Coleman referred to the man on the
recordings as “the speaker.” Collins’ counsel also cross-
examined Officer Coleman and asked him if he could
tell whether the voice on the tapes was Collins;
Officer Coleman said, “I cannot.” We believe these clari-
fications, coupled with Officer Coleman’s assertion that
he was testifying “based on his training and experi-
ence” and not on his familiarity with the facts of this
particular case, sufficiently apprised the jury of the
scope of Officer Coleman’s testimony.
C. Sentencing Enhancement
Our last inquiry is whether the district court properly
enhanced Collins’ Guidelines range pursuant to U.S.S.G.
§ 3B1.1, which calls for a three-level increase in the
offense level if the defendant was a “manager or super-
visor” and the criminal activity involved five or more
participants or was otherwise extensive.2 Collins objects
to the enhancement on the ground that Collins did
not manage or supervise anyone. Citing United States v.
2
Collins does not specifically challenge the second prong
of § 3B1.1, that the criminal activity involved five or more
participants or was otherwise extensive, but we believe the
overall scheme in question easily satisfies the “otherwise
extensive” requirement. See United States v. Fluker, 698 F.3d
988, 1002 (7th Cir. 2012) (describing what we consider in
determining whether criminal activity is “otherwise exten-
sive”). No further discussion is necessary.
14 No. 11-3098
Mankiewicz, 122 F.3d 399, 405-06 (7th Cir. 1995), Collins
contends that he and Gregory only had a buyer-seller
relationship, and this is insufficient to invoke the § 3B1.1
enhancement. We review the district court’s applica-
tion of the Sentencing Guidelines de novo and its factual
findings for clear error. Fluker, 698 F.3d at 1001.
We have stated that “[a] supervisor, a manager,
tells people what to do and determines whether
they’ve done it.” United States v. Figueroa, 682 F.3d 694,
697 (7th Cir. 2012). Collins’ role easily satisfies this de-
scription. Initially, it was Collins who reached out
to Gregory at Lee’s Auto Shop to bring him into the
cocaine-distribution scheme. Then, for three years,
Collins fronted Gregory kilos of cocaine, directed
Gregory where and when to pick up the drugs and
cash, and told Gregory how much to sell the product
for. We have found this type of role to be suf-
ficient in various criminal schemes for the “manager or
supervisor” enhancement to apply. See, e.g., United States
v. Skoczen, 405 F.3d 537, 550 (7th Cir. 2005) (explaining
that control can include organizing another participant’s
role and continued involvement in the scheme). And
more: Collins verified Gregory’s drug-dealing procedures
and directed Gregory to remove the tinted windows on
his car so as to make sure Collins’ drugs did not find
their way into the hands of law enforcement person-
nel who might find the tint suspicious. And more impor-
tantly, Collins controlled the method by which he
and Gregory communicated, providing Gregory with
new cell phones every few months and deciding the
proper time to switch phones.
No. 11-3098 15
Collins compares his interactions with Gregory to
that of a simple buyer-seller relationship, but we are
hardly moved by this characterization. In fact, it is
telling that Collins frames the argument around the
statement, “Decisions where to meet and how to talk
aside . . . .” The particulars of how, when, where, and why
they communicated are highly relevant to our inquiry.
See United States v. Doe, 613 F.3d 681, 688 (7th Cir.
2010) (concluding that “more involvement than simply
supplying or negotiating” drugs—including exercising
decision-making authority, coordinating meetings be-
tween participants, and orchestrating the logistics of
the drugs’ transportation—is sufficient to warrant
a “manager or supervisor” enhancement).
Collins says he was unaware of the specific people
Gregory sold to but directs us to no authority that says
he was required to know the specific end-buyers or
where his drugs would ultimately come to rest for the
§ 3B1.1 enhancement to apply. Rather, what we do
know is Collins was actively involved in what Gregory
was doing (i.e., selling the cocaine he received from
Collins), how he was doing it, where he was doing it,
and when he was doing it. As Collins stated on the
first recording, “Man, I got a crew, that ain’t no prob-
lem.” We are convinced Collins’ conduct demonstrates
Gregory was a part of his “crew,” a minion in the
overall conspiracy, and exemplifies the exact type of
managerial or supervisory role contemplated in § 3B1.1.
Compare Figueroa, 682 F.3d at 696-98, and United States
v. Grigsby, 692 F.3d 778, 790-91 (7th Cir. 2012) (affirming
the district court’s conclusion that the defendant was
16 No. 11-3098
a “manager or supervisor” because the defendant
planned the scheme, recruited participants, and di-
rected execution of the illegal conduct), with
Mankiewicz2 122 F.3d at 405-06 (reversing the district
court’s conclusion that a defendant was a “leader or
organizer” because the only tasks the defendant asked
his father to complete, which did not include selling
or delivering any marijuana, did not have a “real and
direct influence” on the distribution scheme).
Collins was Gregory’s “manager” or “supervisor,”
through whatever lens is used to view their relation-
ship, and the district judge properly enhanced the ap-
plicable Guidelines range under § 3B1.1.
III. CONCLUSION
We A FFIRM Collins’ conviction and sentence.
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