United States v. Aguilera-Meza

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 26, 2009
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4102
EUSEBIO AGUILERA-MEZA, (D.C. No. 2:05-CR-00887-DAK)
(D. Utah)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, McKAY, and HARTZ, Circuit Judges.
A jury convicted Eusebio Aguilera-Meza on two counts of conspiring to
commit money laundering, one count of conducting an unlicensed money
transmitting business, two counts of failing to file a Currency Transaction Report,
and one count of illegal reentry. The district court sentenced Aguilera-Meza to
276 months’ imprisonment and 36 months’ supervised release. Aguilera-Meza
appeals his convictions and sentence. We have jurisdiction pursuant to 28 U.S.C.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
§ 1291, and affirm.
I
With others, Aguilera-Meza operated Envios Aguilera, a business that
conducted wire transfers of money between the United States and Mexico. At
times, the business operated without the necessary licensing. Through this
business, Aguilera-Meza transmitted from the United States to Mexico funds from
illegal drug transactions.
Based on these actions, a grand jury indicted Aguilera-Meza and several
co-defendants on eleven counts. Specifically, the grand jury charged that
Aguilera-Meza: (1) conspired under 18 U.S.C. § 1956(h) to commit money
laundering under 18 U.S.C. § 1956(a)(2)(A), (B) (“Count 1”); (2) operated an
unlicensed money transmitting business under 18 U.S.C. § 1960 (“Count 3”); (3)
conspired under 18 U.S.C. § 1956(h) to commit money laundering under 18
U.S.C. § 1956(a)(3)(B) (“Count 5”); (4) failed to file a required report on a
currency transaction on August 3, 2005 under 31 U.S.C. § 5313 (“Count 6”); (5)
failed to file a required report on a currency transaction on September 1, 2005
under 31 U.S.C. § 5313 (“Count 7”); and (6) reentered the United States after
being removed in violation of 8 U.S.C. § 1326(a) (“Count 9”).
Discovery on these charges was extensive, including several recorded
conversations, transcripts, and business records. By September 20, 2006, when
Aguilera-Meza’s trial counsel was added for his defense, discovery filled boxes
2
and was available through a searchable computer database. Counsel began
receiving and reviewing this discovery by November of 2006.
On November 13, 2006, Aguilera-Meza filed a motion to continue his trial,
then set for February 5, 2007. The court granted this motion, continuing the trial
to June 25, 2007. On April 26, 2007, Aguilera-Meza filed his second motion to
continue trial based on the amount of discovery to review, noting “defense
counsel has not had adequate time to review all discovery received . . . .” R. Vol.
I, Doc. 265 at 1. The district court granted the second motion, continuing trial to
November 27, 2007. On October 2, 2007, Aguilera-Meza filed his third motion to
continue trial. After hearing arguments from counsel, the district court denied
this motion and directed the parties to exchange exhibits by November 7, 2007.
On November 15, 2007, Aguilera-Meza filed his fourth motion to continue trial,
stating that “he and his counsel are not adequately prepared for trial in this
matter, can not become adequately prepared for trial by the time of trial date, and
that, if [Aguilera-Meza] is forced to go to trial at this time under these
circumstances, he will be denied effective assistance of counsel.” R. Vol. I, Doc.
312 at 1. Aguilera-Meza acknowledged receiving a list of “specific proposed
exhibits . . . on November 12, 2007,” and being informed of the identity of the
confidential informant the week before. Id. at 2–3. After again hearing
arguments from counsel, the district court denied the motion to continue trial. On
November 21 and 27, 2007, Aguilera-Meza filed additional motions to continue
3
trial, citing concerns over the status of translations of recorded conversations and
the difficulty for defense counsel to meet with Aguilera-Meza, who was in
custody. The court denied these requests.
Aguilera-Meza also filed several pretrial discovery motions, including a
request for a hearing under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579(1993), a request for disclosure of the identity of cooperating witnesses, and a
motion in limine that also requested a hearing under United States v. James, 590
F.2d 575 (5th Cir. 1979). The district court denied the requests for the Daubert
and James hearings. The government disclosed the identity of the confidential
informant in early November 2007. On November 21, 2007, the prosecution filed
its proposed witness list, which included the confidential informant.
The district court conducted Aguilera-Meza’s trial from November 28,
2007 to December 7, 2007. The government presented testimony from fifteen
witnesses during its case-in-chief. Among these witnesses, and relevant to the
present appeal, were Roberto Cortez, Judy Romero, Leticia Valesquez, Michael
Minichino, and Michael Hamideh. Jeff Fletcher, a Special Agent with the IRS,
also testified and discussed an exhibit summarizing Aguilera-Meza’s numerous
transactions. All of these witnesses were listed on the government’s witness list.
Transcripts and translations of recorded conversations involving Aguilera-Meza
were presented to the jury. Aguilera-Meza testified in his defense. The jury
convicted Aguilera-Meza on all six counts. The district court sentenced Aguilera-
4
Meza to 276 months’ imprisonment and 36 months’ supervised release.
Aguilera-Meza now appeals, raising three primary arguments. First,
Aguilera-Meza challenges the sufficiency of the evidence for his money
laundering convictions. Second, Aguilera-Meza argues that his inability to
properly cross-examine certain testimony violated his Sixth Amendment rights.
Third, Aguilera-Meza argues that his sentence is disproportionate to the crimes
for which he was convicted, violating his Eighth Amendment rights.
II
I. The Money Laundering Conspiracy Convictions
On Count 1, the jury convicted Aguilera-Meza under 18 U.S.C. § 1956(h)
of conspiring to commit money laundering under 18 U.S.C. § 1956(a)(2)(A), (B).
On Count 5, the jury convicted Aguilera-Meza under 18 U.S.C. § 1956(h) of
conspiring to commit money laundering under 18 U.S.C. § 1956(a)(3)(B).
Aguilera-Meza argues that the government did not prove all of the elements
necessary for a conviction under these statutes.
As a question of law, we review challenges to the sufficiency of the
evidence de novo. United States v. Rahseparian, 231 F.3d 1257, 1261 (10th Cir.
2000) (applying this standard in the context of a money laundering conviction).
In applying this standard, “we examine, in a light most favorable to the
government, all of the evidence together with the reasonable inferences to be
drawn therefrom and ask whether any rational juror could have found the essential
5
elements of the crime beyond a reasonable doubt.” Id. (quotation omitted).
Section 1956(h) incorporates the other money laundering statutes, by
providing: “Any person who conspires to commit any offense defined in this
section . . . shall be subject to the same penalties as those prescribed for the
offense the commission of which was the object of the conspiracy.” 18 U.S.C. §
1956(h). To convict Aguilera-Meza under this statute, the government was
required to prove: “(1) the existence of an agreement (2) to break the law, (3) an
overt act (4) in furtherance of the conspiracy’s object, and (5) that he willfully
entered the conspiracy.” United States v. Shepard, 396 F.3d 1116, 1123 (10th
Cir. 1992). Here, the “law[s]” that the jury found that Aguilera-Meza agreed to
“break” were 18 U.S.C. § 1956(a)(2)(A), (B) and § 1956(a)(3)(B).
Section 1956(a)(2) provides:
Whoever transports, transmits, or transfers, or attempts to transport,
transmit, or transfer a monetary instrument or funds from a place in
the United States to or through a place outside the United States or to
a place in the United States from or through a place outside the
United States—
(A) with the intent to promote the carrying on of specified unlawful
activity; or
(B) knowing that the monetary instrument or funds involved in the
transportation, transmission, or transfer represent the proceeds of
some form of unlawful activity and knowing that such transportation,
transmission, or transfer is designed in whole or in part—
(i) to conceal or disguise the nature, the location, the source, the
ownership, or the control of the proceeds of specified unlawful
activity; or
(ii) to avoid a transaction reporting requirement under State or
Federal law, shall be sentenced to a fine of not more than $500,000
or twice the value of the monetary instrument or funds involved in
6
the transportation, transmission, or transfer whichever is greater, or
imprisonment for not more than twenty years, or both. For the
purpose of the offense described in subparagraph (B), the defendant’s
knowledge may be established by proof that a law enforcement
officer represented the matter specified in subparagraph (B) as true,
and the defendant’s subsequent statements or actions indicate that the
defendant believed such representations to be true.
Id. § 1956(a)(2). Thus for Count 1, the government was required to prove that
Aguilera-Meza agreed to (1) transfer or attempt to transfer funds (2) from the
United States (3) to a place outside of the United States (4) “with the intent to
promote the carrying on of specified unlawful activity”; or “knowing that the . . .
funds involved in the . . . transfer represent the proceeds of some form of
unlawful activity and knowing that such . . . transfer is designed in whole or in
part to conceal or disguise the nature, the location, the source, the ownership, or
the control of the proceeds of specified unlawful activity.” Id.; Cuellar v. United
States, 128 S. Ct. 1994, 2002 (2008).
In pertinent part, § 1956(a)(3) provides:
Whoever, with the intent . . . (B) to conceal or disguise the nature,
location, source, ownership, or control of property believed to be the
proceeds of specified unlawful activity . . .
conducts or attempts to conduct a financial transaction involving
property represented to be the proceeds of specified unlawful
activity, or property used to conduct or facilitate specified unlawful
activity, shall be fined under this title or imprisoned for not more
than 20 years, or both. For purposes of this paragraph and paragraph
(2), the term “represented” means any representation made by a law
enforcement officer or by another person at the direction of, or with
the approval of, a Federal official authorized to investigate or
prosecute violations of this section.
7
Id. § 1956(a)(3). Thus for Count 5, the government was required to prove that
Aguilera-Meza entered into an agreement (1) with the intent to (2) “conceal or
disguise the nature, location, source, ownership, or control of property” that (3)
he believed to be the proceeds of specified unlawful activity (4) by conducting a
financial transaction (5) involving property that was represented to be the
proceeds of, or used to conduct, specified unlawful activity. Id.
First, Aguilera-Meza contends that the government failed to connect the
money laundering in Count 1 with an underlying “specified unlawful activity.”
18 U.S.C. § 1956(a)(2)(A), (B). Aguilera-Meza asserts, “no financial transaction
was separate from and in addition to the underlying crime of unlicensed money
transmitting affecting interstate and foreign commerce, in violation of 18 U.S.C. §
1960(2) also charged against [Aguilera-Meza].” Aplt. Br. at 22. We reject this
argument.
The evidence at trial indicates that the specified unlawful activity necessary
to support Aguilera-Meza’s convictions for money laundering was drug
trafficking. Aguilera-Meza’s briefing repeatedly acknowledges this. 1 Aguilera-
1
We note that in Aguilera-Meza’s reply brief, he alters this argument,
conceding that “[t]he trial court record is replete with inferences and innuendoes
that some third parties were dealing in drugs, but [now arguing] there is no direct
evidence of any particular drug transaction, the proceeds of which ended up in the
hands of Aguilera-Meza, and which were then laundered.” Aplt. Reply Br. at 16.
To the extent this argument first appears in Aguilera-Meza’s reply brief, we do
not consider it. See United States v. Fields, 516 F.3d 923, 949 (10th Cir. 2008)
(declining to address new arguments first raised in a reply brief). To the extent
(continued...)
8
Meza testified that he was not involved in drug trafficking, noting that he does
not “even drink or smoke.” R. Vol. 2, Dec. 6, 2007 at 62. Consequently, the
underlying crime, drug trafficking, was separate from the crimes of unlicensed
money transmitting affecting interstate or foreign commerce and money
laundering. Aguilera-Meza’s reference to a “merger problem” is without merit.
Aplt. Br. at 24; see United States v. Kennedy, 64 F.3d 1465, 1477 (10th Cir.
1995) (“All that is required to violate [§] 1956 is a transaction meeting the
statutory criteria that takes place after the underlying crime has been
completed.”).
Second, Aguilera-Meza contends that the funds he transferred to Mexico
were not “proceeds” under the money laundering statute, citing United States v.
Santos, 128 S. Ct. 2020 (2008). Aguilera-Meza argues that the funds he
transferred were to buy additional drugs, and were therefore not profits. Aplt. Br.
at 24, 28.
Even if we were to agree that Santos holds that under § 1956 “proceeds”
should be defined by “profits” and not “receipts,” this distinction is of no help to
Aguilera-Meza. Santos, 128 S. Ct. at 2025. His argument is countered by an
example the Supreme Court provides in Santos: “For example, someone accepting
1
(...continued)
this argument merits consideration, none of the identified elements of conspiracy
to commit money laundering requires evidence of a specified instance of the
unlawful activity. Instead, the elements require evidence that the funds were
proceeds of unlawful activity.
9
receipts from what he knows to be a long-continuing drug-dealing operation can
be found to know that they include some profits. And a jury could infer from a
long-running launderer-criminal relationship that the launderer knew he was
hiding the criminal’s profits.” Santos, 128 S. Ct. at 2029. The evidence
presented in the present case established that Aguilera-Meza repeatedly accepted
receipts from persons he knew were drug dealers, creating the inference that at
least some of the funds included profits. Accordingly, the distinction between
proceeds and receipts discussed in Santos does not support Aguilera-Meza’s
position.
Third, Aguilera-Meza argues that the evidence was insufficient to show an
intent to conceal or disguise the nature, location, source, ownership, or control of
the proceeds of specified unlawful activity. 2 In United States v. Shepard, we
identified evidence potentially probative of an intent to conceal as including:
“unusual secrecy surrounding the transaction; structuring the transaction to avoid
attention; depositing illegal profits in the bank account of a legitimate business;
highly irregular features of the transaction; using third parties to conceal the real
2
Aguilera-Meza explicitly argues that “[t]he statute is clear that it requires
proof that the purpose of the transportation or transfer was to cleanse illicit funds
of their appearance of taint with criminality”; “creating the appearance of
legitimate wealth is the criminal conduct targeted by the money laundering
statute.” Aplt. Br. at 25–26. This language does not appear in the statute. We do
not find Aguilera-Meza’s efforts to include this requirement into the statutorily-
listed elements to be persuasive. Cuellar v. United States, 128 S. Ct. 1994,
2000–01 (2008) (similarly rejecting the inclusion of a “legitimate wealth”
element).
10
owner; [and] a series of unusual financial moves cumulating in the transaction . . .
.” 396 F.3d 1116, 1120 (10th Cir. 2005) (quotation omitted).
Aguilera-Meza concedes that “[t]he evidence before the lower court
specifically indicates that [Aguilera-Meza] took money into his business,
deposited the funds into his own account, then transferred money to other
accounts, some of them fictitious, or caused money to go to Mexico by check
cashing.” Aplt. Br. at 30–31. This concession acknowledges that he deposited
the funds in the bank account of a “legitimate” business, and used third parties to
conceal the real owner. Moreover, the use of fictitious accounts indicates
structuring the transaction to avoid attention, and is a highly irregular feature of
the transaction. See Shepard, 396 F.3d at 1123 (noting that the use of fake names
demonstrates an intent to conceal or disguise the illegal funds because it
structures the transaction “in a way to avoid attention,” “use[s] third parties to
conceal the real owner,” and “involve[s] highly irregular features”).
II. Sixth Amendment
Aguilera-Meza argues that the district court violated his right “to be
confronted with the witnesses against him,” U.S. Const. amend VI, by (1)
allowing the testimony of last-minute witnesses; (2) allowing the testimony of a
confidential informant whose identity was not given until the last minute; (3)
allowing the admission of translated transcripts; (4) allowing portions of expert
testimony; (5) admitting summary exhibits; and (6) allowing co-conspirator
11
statements. Each of these arguments stems in part from the district court’s denial
of Aguilera-Meza’s requests for a continuance.
We review a denial of a request for a continuance for abuse of discretion.
United States v. Flanders, 491 F.3d 1197, 1216 (10th Cir. 2007). A trial court
“enjoys broad discretion on matters of continuances, even when the parties
implicate Sixth Amendment issues.” United States v. Mendoza-Salgado, 964 F.2d
993, 1016 (10th Cir. 1992). In exercising its broad discretion, we have identified
several factors for the district court to consider: “[1] the diligence of the party
requesting the continuance; [2] the likelihood the continuance, if granted, would
accomplish the purpose underlying the party’s expressed need for the
continuance; [3] the inconvenience to the opposing party, its witnesses, and the
court resulting from the continuance; [4] the need asserted for the continuance
and the harm that appellant might suffer as a result of the district court’s denial of
the continuance.” United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990)
(quotation omitted).
Here, the district court had granted several motions for continuance filed by
Aguilera-Meza. By the time the case was finally tried, Aguilera-Meza’s counsel
had worked on the case for over one year and presumably understood the issues.
At trial, the government called many witnesses, each of whom would have been
inconvenienced had the court granted yet another continuance. While he
identifies several areas where he considered his defense preparation to be
12
deficient, Aguilera-Meza has not made any specific allegation on appeal as to
how he would have directly benefitted from a continuance. Even if the district
court did not explicitly address these concerns in its denial, “it remained free to
balance the numerous factors articulated here in rejecting [Aguilera-Meza’s]
motion [for a continuance].” Mendoza-Salgado, 964 F.3d at 1016. We conclude
that the district court did not abuse its discretion in denying Aguilera-Meza’s
requests for a continuance.
A. Last-Minute Witnesses
Aguilera-Meza asserts that “[t]he government only informed [him] of the
testimony of Robert[o] Cortez, Judy Romero, and Leticia Valesquez mere days
before the trial.” Aplt. Br. at 32. Aguilera-Meza contends that this short notice
prejudiced his defense by not providing sufficient preparation time.
We review the admission of testimony from last-minute witnesses for abuse
of discretion. United States v. Nevels, 490 F.3d 800, 802–03 (10th Cir. 2007)
(applying this standard for “unlisted government witnesses”). We review de
novo, however, whether the admission of such evidence violates the
Confrontation Clause of the Sixth Amendment. United States v. Townley, 472
F.3d 1267, 1271 (10th Cir. 2007).
We disagree with Aguilera-Meza’s characterization of these witnesses as
“last minute.” The government listed these witnesses in its proposed witness list,
which was filed one week before trial. R. Vol. I, Doc. 318 at 1–2. Moreover,
13
Aguilera-Meza does not identify how the timing of the government’s disclosure of
the identified witnesses violated any court order.
Even if we accept the assertion that the timing of the government’s witness
disclosure hindered the ability to confront the witnesses, we reject Aguilera-
Meza’s unsupported assertion that “[t]he trial court erred by denying [Aguilera-
Meza] his right to confrontation.” Aplt. Br. at 33. “The Supreme Court has
established that no constitutional right to pretrial discovery of witnesses exists in
non-capital cases.” Nevels, 490 F.3d at 803 (citing Weatherford v. Bursey, 429
U.S. 545, 559 (1977)) (emphasis omitted). Additionally, there is not a statute or
rule of procedure requiring pretrial disclosure of non-expert witnesses. Id.This reasoning equally resolves Aguilera-Meza’s unsupported assertion that
“[t]he District Court erred in allowing the testimony of the confidential informant,
whose identity was not given . . . until the last minute, despite his early demand
to identify the informant.” Aplt. Br. at 31. See United States v. Green, 178 F.3d
1099, 1108 (10th Cir. 1999) (rejecting the argument that “because [defendant]
was unaware of the informant’s identity until trial, his Sixth Amendment right to
confront and cross-examine the key witness against him was never provided
. . . .” (quotation omitted)).
B. James Hearing
Aguilera-Meza states that he “timely demanded a [James] hearing . . . ,
[and that the district court’s decision to] proceed without a [James] hearing
14
compromised [his] right to due process.” Aplt. Br. at 34. We reject this
argument for several reasons.
First, it does not appear that Aguilera-Meza “timely” requested a James
hearing. Aguilera-Meza did not file a motion requesting a James hearing.
Instead, Aguilera-Meza’s reference to a James hearing appears in a paragraph of a
motion in limine filed the day before the start of trial. R. Vol. I Doc. 332, at 3
(“For that purpose, the defendant would be entitled to a James hearing in advance
of the proposed testimony.”). Even if we were to construe Aguilera-Meza’s
reference to a James hearing as a request for a James hearing, this request was
untimely.
Second, while we have reiterated “our strong preference” for James
hearings when the prosecution relies on co-conspirator statements, a James
hearing is not required. United States v. Gonzalez-Montoya 161 F.3d 643,
648–49 (10th Cir. 1998). In the alternative to holding a James hearing, a district
court may properly admit a co-conspirator statement “by provisionally admitting
the statement with the caveat that the party offering it must prove the existence of
the predicate conspiracy through trial testimony or other evidence.” Id. at 649(internal quotations and alterations omitted); Townley, 472 F.3d at 1273(identifying both alternatives). The trial court retains some discretion in choosing
between these alternatives. United States v. Urena, 27 F.3d 1487, 1491 (10th Cir.
1994).
15
Aguilera-Meza does not contend that the district court erred in its
provisional admission of the co-conspirator testimony. 3 Further, Aguilera-Meza
does not specifically identify to which co-conspirator statements he objects,
offering only the conclusory statement, “[t]he testimony of both Hamideh and
Minichino are replete with discussions of conversations between themselves and
[Aguilera-Meza’s] wife, Veronica Moran, her father, her cousin, or [Aguilera-
Meza’s] brothers[; s]uch statements should have been found to be hearsay, not
specifically in furtherance of a money laundering conspiracy . . . .” Aplt. Br. at
34. Based on our prior analysis concluding there was sufficient evidence to
support Aguilera-Meza’s money laundering convictions, we conclude that the
district court’s decision to not conduct a James hearing did not prejudice
Aguilera-Meza.
Aguilera-Meza also argues that the admission of the co-conspirator
statements violated his Sixth Amendment right to confrontation under Crawford
v. Washington, 541 U.S. 36 (2004). We explicitly rejected similar arguments in
Townley. 472 F.3d at 1273 (“We find no merit to Appellant’s unfounded and
unsupported contention that Crawford’s instruction on testimonial hearsay
somehow eviscerated Federal Rule of Evidence 801(d)(2)(E), especially since
Rule 801(d)(2)(E) treats declarations by coconspirators not as an exception to the
3
In his reply brief, Aguilera-Meza asserts, without support or citation, that
“the Government . . . was permitted wholesale to inquire of multiple witnesses
about bad conduct, not eventually tied to [Aguilera-Meza].” Aplt. Reply Br. at 6.
16
hearsay rules, but as nonhearsay.”).
C. Expert Testimony
Aguilera-Meza raises several objections related to the district court’s
admission of expert testimony. Aguilera-Meza, without support, first asserts that
the trial court violated his Sixth Amendment right to confrontation by not
conducting a Daubert hearing. While a district court must “make some kind of
reliability determination” before admitting expert testimony, the district court
retains “great latitude in determining how to make Daubert reliability findings.”
United States v. Velarde, 214 F.3d 1204, 1209 (10th Cir. 2000) (emphasis
omitted). Accordingly, “Daubert does not mandate an evidentiary hearing.”
United States v. Nichols, 169 F.3d 1255, 1262 (10th Cir. 1999) (“[W]e simply
require a sufficiently developed record in order to allow a determination of
whether the district court properly applied the relevant law.” (quotation omitted)).
Second, Aguilera-Meza argues that the district court improperly admitted
expert testimony by law enforcement officers regarding foreign language
translations. We address these arguments related to these witnesses individually.
Aguilera-Meza challenges the testimony of Michael Minichino, a criminal
investigator with the Bureau of Alcohol, Tobacco, Firearms, and Explosives
(“ATF”), for his qualifications as a Spanish translator. Minichino testified,
however, that he had two years of formal Spanish education at the University of
Utah and has used Spanish in his capacity as a federal law enforcement officer.
17
R. Vol. 2, Nov. 29, 2007, at 87. Based on this testimony, “[t]he trial court clearly
could have found [Minichino’s] qualifications sufficient to satisfy the liberal
standard under Fed. R. Evid. 702 regarding expert qualifications.” See United
States v. Gomez, 67 F.3d 1515, 1526 (10th Cir. 1995) (applying this conclusion to
an individual with a minor in Spanish who also had spoken Spanish on a 23-
month religious mission in South America).
Similarly, Aguilera-Meza challenges the testimony of Michael Hamideh, a
Salt Lake City Police Officer, regarding his expertise in Spanish drug slang.
Aguilera-Meza objects to Hamideh’s commenting upon the definition of “debtos”
and “mercandia.” Spanish, however, was Hamideh’s first language; his mother
was Peruvian. R. Vol. 2, Nov. 30, 2007, at 37. Hamideh worked “approximately
50 or more times” in an undercover capacity speaking in Spanish drug slang. Id.(“[T]he primary type of undercover work that I’ve done has been in Spanish. And
so all my experience has been with Spanish terminology.”). These qualifications
establish Hamideh’s ability to testify regarding Spanish drug slang. United States
v. Verdin-Garcia, 516 F.3d 884, 893 (10th Cir. 2008) (“Once foundation is laid
that a translator has that savvy, her translation of drug slang is no more a matter
of opinion than her translation of any other slang or idiomatic usage. Differences
of opinion on the proper meaning or translation of a slang term are to be resolved
. . . through cross-examination or by the presentation of another qualified
18
translator with a contrary view.”). 4
Aguilera-Meza also challenges these witnesses’ qualifications as experts in
voice recognition. Both witnesses, however, had previously conversed with
Aguilera-Meza. Because they heard Aguilera-Meza’s voice in person, they could
identify his voice under Federal Rule of Evidence 901(b)(5). 5 United States v.
Hardwell, 80 F.3d 1471, 1494 (10th Cir. 1996) (“Expert testimony is not required
for identification of a voice.”).
Third, Aguilera-Meza challenges the testimony of Jeff Fletcher, a Special
Agent with the IRS, for his testimony “concerning the money transfers” and his
references to “summary exhibits.” Aplt. Br. at 40–41. The basis of Aguilera-
Meza’s challenge to this testimony appears to be the district court’s denial of a
Daubert hearing and Aguilera-Meza’s inability to refute the summary exhibit due
to short notice.
4
Even if we found that Hamideh was insufficiently qualified to comment
on Spanish drug slang, Aguilera-Meza did not suffer any prejudice from this
testimony. Aguilera-Meza does not cite where in the trial transcript the slang
terms, “debtos” and “mercandia,” are mentioned in the trial transcript. Instead, it
appears that Aguilera-Meza challenges, in part, testimony on the word “drogas.”
Aguilera-Meza, at repeated prompting by defense counsel, testified that “drogas”
is Spanish for “debts.” E.g., R. Vol. 2, Dec. 6, 2007 at 1128, 1176, 1182 (“D-R-
O-G-A-S, D-R-O-G-A-S, that’s the word that you’re talking about; correct? . . .
In this context, you understand the word ‘drogas, drogas’ to be debts, debts?”).
5
Rule 901(b)(5) provides an example for identification conforming with
the rules of Evidence: “Identification of a voice, whether heard firsthand or
through mechanical or electronic transmission or recording, by opinion based
upon hearing the voice at any time under circumstances connecting it with the
alleged speaker.” Fed. R. Evid. 901(b)(5).
19
To the extent these unsupported and conclusory arguments merit
consideration, we reject them. As stated, a Daubert hearing is not mandatory.
Nichols, 169 F.3d at 1262. Further, Aguilera-Meza has not identified any
prejudice resulting from the denial of the Daubert hearing and the admission of
Fletcher’s testimony. 6 Unquestionably, Fletcher’s background of twelve years as
a special agent with “I.R.S. Criminal Investigations,” an international finance
degree, and extensive training into money laundering investigations, qualified him
as an expert on “money transfers.” R. Vol. 2, Dec. 4, 2007, at 830–31.
Regarding the summary exhibits, “[t]he admission of summaries . . . is
within the sound discretion of the trial court.” United States v. Thompson, 518
F.3d 832, 858 (10th Cir. 2008) (quotation omitted). Aguilera-Meza has not
indicated how the district court abused its discretion or how he was prejudiced by
the short notice. Although he states that “he saw the summary just immediately
before trial,” Aguilera-Meza provides no citation, support, or argument to indicate
why this summary exhibit required additional time given his months of access to
the unabridged evidence.
6
In his reply brief, Aguilera-Meza “asserts that virtually the entirety of the
testimony (the money tracing, and then testimony as to the ultimate issue),
violated the purview of the jury, when he testified that the purpose of the money
moving activities he had tracked in the exhibits would be to conceal the source of
the money . . . Only Agent Fletcher . . . testified that this evidence constituted
the crime of money laundering. This likely would have had a significant impact
in the jury’s mind, and would not constitute ‘harmless error.’” Aplt. Reply Br. at
13–14. These arguments do not clarify how a Daubert hearing would have
impacted the admission of this testimony.
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We conclude the district court did not err in the admission of testimony or
summary exhibits.
III. The Eighth Amendment
Lastly, Aguilera-Meza “asserts that this sentence [of 276 months’
imprisonment and 36 months’ supervised release] is unduly harsh given the . . .
the underlying crimes . . . .” Aplt. Br. at 42. Aguilera-Meza contends the
sentences for the charges, except Count 9, merge. Additionally, Aguilera-Meza
argues that his sentence violates the Cruel and Unusual Punishments Clause in the
Eighth Amendment based on his comparison of his sentence with the sentences of
his co-defendants.
We review de novo whether a sentence violates the Eighth Amendment.
United States v. Gillespie, 452 F.3d 1183, 1190 (10th Cir. 2006). First, Aguilera-
Meza’s money laundering convictions, which were based on the underlying
criminal activity of drug trafficking, do not merge with the other financial
transaction convictions. Second, Aguilera-Meza has not identified any co-
defendant that is similarly situated; he makes no comparison to the present
convictions or criminal histories between himself and any co-defendant. United
States v. Rojas, 531 F.3d 1203, 1209–10 (10th Cir. 2008) (“[Defendant] cannot
show he is similarly situated to his co-defendants. His criminal history is more
extensive than [theirs].”). Finally, we note, “the Constitution does not require the
crime and the sentence to be strictly proportional. Instead, it forbids only
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extreme sentences that are grossly disproportionate to the crime. Generally, a
sentence within the limits imposed by statute is neither excessive nor cruel and
unusual under the Eighth Amendment.” Gillespie, 452 F.3d at 1190 (internal
citation and quotation omitted). Aguilera-Meza does not argue that his sentence
violates any statute or the Sentencing Guidelines. To the contrary, Aguilera-
Meza’s sentence appears to be below the applicable Sentencing Guidelines range.
Cf. Rojas, 531 F.3d at 1209 (“A sentence which falls within a properly calculated
Guideline range is entitled to a rebuttable presumption of reasonableness.”
(quotation omitted)). We conclude that the district court did not err in sentencing
Aguilera-Meza.
III
We affirm.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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