Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cr-00403-LTB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00403-LTB UNITED STATES OF AMERICA, Plaintiff, v. 1. 2. CARLOS ZAPATA-HERNANDEZ, SERGIO ZAPATA-HERNANDEZ, a/k/a "Tito," a/k/a "Titillo," and a/k/a "Lucas," FABIAN MIRANDA-URBINA, a/k/a "Chino," ARNOLDO ZAPATA, a/k/a "Lolo," JOSE ALFREDO ZAPATA, a/k/a "Alfredo," JAIME ARMENDARIZ, RAMON ZAPATA, JAIME ZAPATA, a/k/a "Rudy," a/k/a "Jimmy," and a/k/a "Chasco," EFRAIN VENZOR, ALBERTO CABRAL, a/k/a "Beto," and a/k/a "Tio Beto," ARTEMISA ZAPATA-MONTOYA, HUMBERTO GALVAN, a/k/a "Beto," LILIAN GALVAN, a/k/a "Petunia," and a/k/a "Yiya," BARBARA ZAPATA, OSCAR ZAPATA, a/k/a "Karin," MICHAEL ROMERO, a/k/a "Mike," RENE ALVAREZ, JOSE ANGEL PEREZ, and a/k/a "Primo," Defendants.

3. 4. 5. 6. 7. 8.

9. 10.

11. 12. 13.

14. 15. 16. 17. 18.

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GOVERNMENT'S RESPONSE TO DEFENSE CHALLENGES [DOC 773, 774,776 AND 820] TO EXPERT WITNESSES TO BE CALLED TO ESTABLISH THE GENERAL PRACTICES OF THE ILLEGAL DRUG TRADE, INCLUDING THE USE OF GUARDED LANGUAGE, AND THE MEANING OF CODE WORDS AND TERMS IN THE CONTEXT OF DRUG TRADE PURSUANT TO FED. R. CRIM. P. 16(a)(1)(G) AND FED. R. EVID. 702

THE UNITED STATES, THROUGH UNITED STATES ATTORNEY WILLIAM J. LEONE, and Assistant United States Attorneys Stephanie Podolak and Guy Till, hereby files this Response to the Defense Objections [DOC 773, 774, 776, and 820] to the Government's calling expert witnesses, pursuant to Fed. R. Crim. P. 16(a)(1)(G) and Fed. R. Evid. 702, whose specialized knowledge of the general practices of the drug trade and the use of code words and guarded language to conduct drug trafficking operations, acquired by means of training and experience, will assist the trier of fact to understand the evidence or determine facts in issue in the above styled case. 1. The Government respectfully asks the Court to take notice of the contents of its own files in this case, to include the content of the Government's Notice at DOC 751 and the Government's James Submission at DOC 364. 2. The Government here respectfully indicates that there is a typographical error in the Government's Notice; the references to Fed. R. Crim. P. 16(a)(1)(E), should be references to Rule 16(a)(1)(G). The Government respectfully apologizes for any confusion resulting.

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3. On appeal, the District Court's rulings with respect to admission of expert testimony and the reliability of an expert opinion are reviewed for an abuse of discretion. United States v. Frazier, 387 F.3d 1244, 1258(11th Cir. 2004). It is axiomatic that a district court has "considerable leeway" in making these determinations. Id., citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). 4. The Government wishes to avoid needless repetition of specifics addressed in the Notice [DOC 751] and in the Government's James Submission [DOC 364] filed March 21, 2005; the James Submission is approximately 70 pages in length, and attachment detailing specific conversations (recordings, transcripts and translations of the conversations were provided in discovery) is approximately 90 pages in length and sets forth and explains in summary fashion the significance of several hundred recorded telephone calls of evidentiary significance in this case. The defense has been on notice, in detail, of the Government's interpretation of the significance of the guarded language and code words in the James Submission [DOC 364] and the attachment since March 21, 2005. Similarly, the Government's interpretation of the functional roles of the participants has been of record since March 22, 2005, when the Government submitted the Government's Charts for James Submission. [DOC 366]. 5. The kind of testimony described in the Notice and summarized in the Government's James Submission properly has been received in many courts. Before the 2000 amendments to the Rules of Evidence, it appears from reported decisions that officers and agents often assisted the finders of fact by providing background and explanation of the illegal drug trade and drug related conversations without coming under Rule 702. Although such officers and agents had specialized knowledge, it was not necessary to establish a predicate for their testimony that 3

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supported a finding that their knowledge and practices rose to the level of hard science. An "individual [with] experience and knowledge of a lay witness may establish his . . . competence, without qualification as an expert, to express an opinion on a particular subject outside the realm of common knowledge." United States v. Santana-Rosa, 132 F.3d 860, 866 (1st Cir. 1998) citing United States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995)(holding that based on experience a police officer could testify as a lay witness that it was common for drug traffickers to use weapons to protect drugs). "In order for a lay opinion to be rationally based on the perception of the witness, the witness must have first hand knowledge of the events to which he is testifying." United States v. Garcia, 994 F.2d 1499, 1506 (10th Cir. 1994). "[T]he first hand knowledge requirement may be based on the lay witness' perception of otherwise admissible out of court statements." Id. at 1507 Thus, before the amendments in 2000, testimony about drug related conversations and practices in the drug trade was sometimes admitted under Rule 701. 6. Since the 2000 amendments to the Rules of Evidence, the trend has been to process under Rule 702 the testimony of agents and officers who assist the finders of fact with background information on the illegal drug trade and with the meaning of guarded language, including code words, in drug related conversations. See United States v. Mejia,___F.3d ___ 2006 WL 1506853 *10-11 (D.C.Cir. 2006) (Inspector qualified as expert regarding "coded phrases with respect to the drug trade"; former DEA Special Agent testified as expert regarding "modus operandi of drug trafficking organizations.") As the Court in Mejia noted, "there is a well established practice of law enforcement officers testifying, on the basis of their experience, as experts in the modus operandi of drug trafficking organizations." Id. at *11. Regarding the use of an experienced agent or officer to explain the significance of guarded language and code 4

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words, "the Advisory Committee's notes to Federal Rule of Evidence 702 specifically contemplate that this kind of experience can qualify a witness as an expert on coded phrases used in drug trafficking." Id. at *10. The Mejia court specifically quotes the Committee note set forth in the Government's Notice [DOC 751] at pp. 3-4. 7. The Government respectfully submits that the crux of the admissibility of such testimony is whether the testimony is helpful and reasonably reliable. In the present case, as it has proven in many other cases, the methodology of the investigators is proven to be reasonably reliable by the circumstances of the case itself, including the circumstances made known to the defense and the Court in the record of proceedings to date, which reflect the seizure of kilograms of cocaine. For the purposes of Rule 16(a)(1)(G), the Government's expert witnesses are of the opinion that the defendants were in the business of coordinating the movement of multiple kilograms of cocaine from Mexico, through El Paso, to Denver and points beyond, on a recurrent basis for monetary profit [DOC 366], using guarded language and code words to coordinate their efforts [DOC 364, DOC 751]. The qualifications of the witnesses are set forth in the Notice ­ resumes for the witnesses may be provided to counsel for the defendants. The Government's interpretations are described in the Notice [DOC 751] and James Submission [DOC 364] and Charts [DOC 366], especially in the ninety-three page attachment to the James Submission marked as DESIGNATED CO-CONSPIRATOR STATEMENTS AND SUMMARY OF STATEMENTS. The basis and reasons for opinions of the witnesses include the intercepted telephone calls of the defendants, the transcripts and translations of such calls, related surveillance reports, seizures of cocaine in the course of the investigation, statements of witnesses who will testify at trial, and other evidence disclosed in discovery, taken in light of the 5

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professional experience and knowledge of the witnesses. 8. Defendant Arnoldo Zapata's Response [DOC 773] blends Rule 403 concerns with Rule 702 concerns. ¶¶ 1,13,14. The evaluation of an objection based on Rule 403 would depend on the state of the evidence at the time of the objection; such concerns are premature at this stage. Arnoldo Zapata's Response contends, inter alia, that the agents' interpretations are not necessary because the intercepted calls represent "readily interpretable conversations." ¶ 4. Although learned counsel may take the operations of a drug organization for granted and be able to interpret drug conversations without assistance, the average juror is lacking in such sophistication. Mejia, supra; United States v. Ceballos, 302 F.3d 679, 685-88 (7th Cir. 2002)(Experienced officer properly testified to the significance of veiled language permitting the jury to apply alternative theories to the evidence of which "they ordinarily would not have been aware.") In large part, Arnoldo Zapata's response focuses on the requirements of hard science, arguing that Rule 702 is not satisfied by the principles and methodology used by special agents to interpret the meaning of drug related conversations. ¶ 5. Arnoldo Zapata's Response is asking the Court to ignore the explicit Advisory Committee note cited by the Government in its Notice at pp. 3-4 [DOC 751] and relied upon by other courts rejecting such arguments. See Mejia, supra. Cf. United States v. Frazier, 387 F.3d 1244, 1297 (11th Cir. 2004). 9. Defendant Jose Alfredo Zapata's Motion to Strike Putative Expert Testimony [DOC 774] raises concerns about the Government witnesses' interpretations of intercepted conversations being "subjective ipse dixit" conclusions and states that "such ipse dixit opinions are not susceptible to publication and/or peer review." Motion ¶ 10. The government assumes that the relevant peer group for a law enforcement professional would be other law enforcement 6

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professionals ­ in this case, as in other cases where courts have permitted expert testimony like the kind the Government proposes in this case, a number of experienced investigators working from the same body of specific information, each investigator relying on the substantial personal professional experience of that investigator, have worked on this case, shared information, and reviewed the material. The process actually is similar to the process a scientific investigator might go through with his or her thesis committee in university. Further, the Government interpretation has been substantially available to the defense for more than a year and has been subject to formal and informal challenge by the defense. Defendant Jose Alfredo Zapata asks the Court to reject the proposed testimony of the Government's witnesses as their interpretations are "not capable of being standardized or having a rate of error beyond a mere toss of the coin." Motion ¶ 10. Defendant Jose Alfredo Zapata is asking the Court to disregard substantial precedent showing that it is proper to permit well qualified and experienced officers or agents to tell juries about the modus operandi of a drug organization and to explain the significance of veiled language, including code words, in the context of drug related conversations. See, Mejia, supra. 10. Defendant Alberto Cabral's Response in Opposition to the Government's Notice relating to Expert Testimony (DOC 751) [DOC 776] raises the concern that the defendant does not have enough information about "the witnesses' opinions so that he may be prepared to defend against this evidence at trial." The Government respectfully submits that the opinions and the bases for the opinions of the Government's witnesses about the significance of the intercepted telephone calls have long been known to the defendant. The defendant has recordings of the conversations, transcripts and translations of the conversations, investigative reports, affidavits, a 7

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schematic chart, and a detailed listing of the conversations and explanations of the drug related significance of the conversations. See DOC 751, 366, 364. The Government has complied with the requirements of Rule 16(a)(1)(G). 11. The Government concedes that defendant Alberto Cabral's Response correctly points out that the Court has latitude in deciding whether to conduct a Daubert hearing. Response ¶¶ 9, 10, citing Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000). 12. WHEREFORE, the Government respectfully asks the Court to rule, at the appropriate time, that the Government expert witnesses named in the Notice [DOC 751] properly may testify to the meaning of words and phrases in intercepted conversations and to the modus operandi of the Zapata drug organization [DOC 364, 366, 751].

RESPECTFULLY SUBMITTED THIS 16TH DAY OF JUNE 2006:

WILLIAM J. LEONE UNITED STATES ATTORNEY DISTRICT OF COLORADO

BY:s/Stephanie Podolak Stephanie Podolak Assistant United States Attorney U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: 303-454-0100 Fax: 303-454-0401 [email protected] 8

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By: s/Guy Till GUY TILL Assistant United States Attorney U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: 303-454-0100 Fax: 303-455-0409 [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on this 16th day of June, 2006, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENSE CHALLENGES [DOC 773, 774,776 AND 820] TO EXPERT WITNESSES TO BE CALLED TO ESTABLISH THE GENERAL PRACTICES OF THE ILLEGAL DRUG TRADE, INCLUDING THE USE OF GUARDED LANGUAGE, AND THE MEANING OF CODE WORDS AND TERMS IN THE CONTEXT OF DRUG TRADE PURSUANT TO FED. R. CRIM. P. 16(a)(1)(G) AND FED. R. EVID. 702 with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Stephanie Podolak, AUSA [email protected] Richard Tegtmeier [email protected] Jeff Pagliuca [email protected] Mark Johnson [email protected] E. Richard Toray and Daniel Gerash [email protected] Richard Banta [email protected] Lisabeth Castle [email protected] Angelica B. Carreon [email protected] Jennifer Gedde [email protected] John Sullivan [email protected] Harvey Steinberg [email protected] Martha Eskesen [email protected] Scott Poland [email protected] Don Lozow [email protected] Mike Root [email protected] James Scherer and Earl Sherwood Wylder [email protected] Chuck Elliot [email protected] Mitch Baker [email protected] Robert Driscoll [email protected]

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and I hereby certify that I have mailed or served the document or paper to following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: s/Debbie Azua-Dillehay DEBBIE AZUA-DILLEHAY Legal Assistant to Guy Till U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0106 Fax: (303) 454-0401 E-mail: [email protected]

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