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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues