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7th Circuit: Drug convictions stand

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The 7th Circuit Court of Appeals affirmed drug convictions against two defendants, holding the lower court didn’t err in admitting a police officer’s voice identification testimony regarding one of the defendants.

In United States of America v. Rosalio Cruz-Rea and Zoyla Garcia-Rea, Nos. 09-3591, 10-1355, Rosalio Cruz-Rea and Zoyla Garcia-Rea appealed their convictions of conspiracy to possess with intent to distribute more than five kilograms of cocaine; Cruz-Rea was also convicted of possession with intent to distribute 500 grams or more of cocaine. The two were involved in a shipment of cocaine from out west to Indianapolis that was under investigation by authorities. Cruz-Rea had numerous recorded telephone conversations in Spanish discussing drug activities; Garcia-Rea was arrested after police pulled over a vehicle for not having a license plate light. Police were tipped off by an informant that the car may be carrying drugs. Garcia-Rea admitted the gift-wrapped packages in the car contained cocaine.

Cruz-Rea appealed the decision that allowed officer Marytza Toy to testify that she recognized Cruz-Rea as a speaker in the recorded telephone calls based on her repeated listening to a recording of Cruz-Rea’s booking process. He claimed the government didn’t lay sufficient foundation to allow it under Federal Evidence Rule 901(b)(5). The 7th Circuit held that the witness had met its interpretation of the standard required of “minimal familiarity” with the voice. Given the length of the voice example she listened to and the number of times she listened to it, the District Court did not abuse its discretion in determining that the government laid sufficient foundation for her testimony. The government also had two witnesses testify as to having the exact conversations on the recordings, wrote Judge William Bauer.

The defendants also challenged the admittance of the government’s transcripts of the 24 wiretapped phone conversations, that the jury could use transcripts that identified the alleged speakers by name, and that the jury could view the transcripts during deliberation. Focusing on the argument about a jury instruction before the transcripts were admitted, the 7th Circuit noted that although the District Judge could have phrased the instruction differently, it sufficiently informed the jury of the law and their role.

“We find that an instruction informing the jury to consider only the transcripts before it, as opposed to fashioning its own translation, cannot be read as an instruction to treat the transcripts as the evidence. This instruction did not misstate the law, mislead the jury, omit relevant portions of the law, or unduly emphasize any part of the evidence,” wrote Judge Bauer.

The 7th Circuit also affirmed admitting non-hearsay co-conspirator statements, Cruz-Rea’s offense level increase, and that the police officer that pulled over Garcia-Rea’s car had probable cause to search the car.

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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