7th Circuit: Drug convictions stand

Back to TopCommentsE-mailPrintBookmark and Share

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.


Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.