United States of America, Plaintiff-appellee, v. Luis Cano and David Matos, Defendants-appellants, 289 F.3d 1354 (11th Cir. 2002)

On August 27, 1997, a Southern District of Florida grand jury returned a seventy-six count indictment against appellants, Luis Cano and David Matos, and eight others. The indictment was the culmination of a lengthy investigation into the operation of a nationwide cocaine trafficking and money laundering network.¹  Cano was charged in all seventy-six counts, and Matos in nine counts. A jury convicted Cano on sixty-nine counts, Counts 1 to 26, 28-31, 38-76; Matos was convicted on all nine counts in which he was charged, Counts 2, 4-10, and 12.²  The jury based its verdicts, in part, on the testimony of several other members of the network.³ 

Cano was sentenced to a mandatory life prison term on Count 1, and to concurrent life sentences on Counts 2-13. Additionally, he received a concurrent term of 240 months' imprisonment on Counts 14-26, 28-31, and 38-76. Matos received on each count a concurrent term of 235 months' imprisonment. Cano and Matos now appeal. They seek new trials or, alternatively, re-sentencing on several grounds.⁴  Only two grounds merit discussion: (1) whether the district court abused its discretion in permitting a police detective to interpret drug ledgers, a personal phone book and date book seized by New York City Police Department ("NYPD") detectives while conducting searches of the network's facilities in the New York City vicinity; and (2) whether the prosecutor impermissibly vouched for the credibility of government witnesses. We resolve these issues in favor of the Government. We notice plain error on a third issue: whether the record contains any evidence to support Cano's conviction on Count 13, possession with intent to distribute marijuana.

In 1989, Cano and Ruben Carillo, both experienced cocaine traffickers, began distributing large amounts of cocaine. Carillo's sister, Amanda, who had become Cano's mistress, introduced the two men. As it turned out, unbeknownst to them, Cano and Carillo had previously been involved together in the distribution of cocaine in New York City; Cano had been supplying a middleman with multi-kilograms of cocaine, often in excess of 100 kilos, and the middleman, in turn, had been allocating portions of the shipments to Carillo.⁵  When the middleman learned that Cano and Carillo had become aware of their respective roles in the distribution network, he quit supplying Carillo. Carillo solved this supply problem by arranging for a Colombian source, "Potato," to supply him and Cano with cocaine.

New York City was the primary destination for Cano's shipments. Cano maintained two houses in the New York City vicinity: a "money house" where all the cash was held and the bookkeeping for the operation took place, and a "stash house" where the cocaine was stored. Claudia Valencia was the operation's bookkeeper and lived and worked in the "money house;" she prepared the ledgers, which were eventually seized by the police during a search and introduced into evidence at trial.⁶  Cano and Carillo had a family reside in the "stash house" in an effort to curb any suspicion about the activities taking place there.

Ruben Carillo supervised the distribution of drugs in the New York City area by telephone from Colombia, where he stayed from 1991 to 1994 to secure the needed cocaine supply. In effect, Carillo was the vice president of Cano's operation, with Cano serving as president. Wilfredo Schery, Cano's brother-in-law, supervised the network's operations in the New York area and reported directly to Carillo.⁷ 

In May 1990, Cano received a 750 kilogram shipment of cocaine from Potato; it was flown to an airstrip near Houston, Texas. Cano, Matos and others met the airplane. The cocaine was off-loaded, taken to a stash house, and subsequently transported by truck to New York City. From the sales that took place there, Cano reaped over $6 million; Carillo received roughly $1.5 million.

From 1992 to April 1994, Cano arranged for regular biweekly shipments — containing 300 to 1,000 kilograms — to New York City. The shipments were made by O.B. Industries, a company Cano had acquired to provide cover for his illicit activities, from its elastics factory in Miami and its facilities in Los Angeles and Texas. The O.B. Industries' facilities in these locations served as Cano's distribution centers;⁸  the cocaine was transported to New York City within pallets of elastics. For every shipment to New York City, Cano received $1,000 per kilogram. The shipments sent from the factory in Miami involved over 10,000 kilograms.

Meanwhile, the NYPD had maintained an active wiretap on Schery's cellular telephone in the New York City area, and both Cano and Matos were recorded discussing their cocaine trafficking business. The wiretap was supervised by Detective Eugene Donnelly. On April 5, 1994, the NYPD arrested Schery and Valencia and seized, at the "stash house," 297 kilograms of cocaine, and, at the "money house," over $1.2 million and two drug ledgers that were introduced into evidence at appellants' trial.⁹  A search of Schery's residence yielded $36,000 in cash, one kilogram of cocaine, and several incriminating documents, all relating to drug transactions. Among these documents were "business cards," including a card for O.B. Industries, "receipts," and Schery's "date book"¹⁰  and "phone book."¹¹ 

Notwithstanding the arrests in New York, Cano kept the network functioning. Among other things, he had Matos spend part of his time in Los Angeles, receiving cocaine at the O.B. Industries facility there and shipping it to New York City. For his efforts, Matos received $100 for every kilogram shipped.

In January 1995, with Carillo back in the United States, Cano took on the additional responsibility of transporting his supplier's cocaine from Colombia to the United States. For undertaking this task, he took forty percent in kind of each shipment. In the first month, his workers smuggled 1,100 kilograms of cocaine into Texas from Mexico. His share, 440 kilograms, yielded $7 million. Texas law enforcement officials intercepted and seized the next shipment from Mexico, 2,600 pounds.

In April 1995, Cano's network began to unravel. That month, Cano shipped 150 kilograms of cocaine to Chicago. One of his workers there, Osvaldo Marcial, stored the cocaine. A few days later, Marcial was arrested and jailed on unrelated charges. Cano learned of the arrest but refrained from contacting Marcial at the jail — to determine where he had stashed the cocaine — for fear of being overheard. Instead, he decided to have his attorney, Michael Burnbaum, posing as Marcial's lawyer, visit Marcial at the jail. Burnbaum could have a private conversation with Marcial and find out where he had stored the cocaine. Cano had confidence in Burnbaum's ability to do this because Burnbaum had been an Assistant United States Attorney.¹²  Unbeknownst to Burnbaum (and Cano), however, Marcial was cooperating with law enforcement and, after Burnbaum met him at the jail, he reported the meeting to the authorities. The intelligence Marcial provided law enforcement led to several arrests — including the arrests of Cano, Matos, Burnbaum, and Ruben Carillo.

Appellants contend that the district court abused its discretion in permitting Detective Donnelly, the NYPD detective in charge of the case,¹³  to decipher, over their objection, what Donnelly and counsel referred to as "hieroglyphics" — symbols contained in the phone book previously introduced into evidence along with the ledgers and date book we have already described.¹⁴  Appellants objected to such deciphering on two grounds: (1) that, under Rule 702 of the Federal Rules of Evidence,¹⁵  the deciphering constituted "expert" testimony by a witness who had not been qualified as an expert; and (2) that the prosecutor had not notified them that Donnelly would be called as an expert witness or provided them with his qualifications and a summary of his testimony, as required by Rule 16 of the Federal Rules of Criminal Procedure.¹⁶  The prosecutor responded to appellants' objection by representing that Donnelly was not being called as an expert; all he was going to do was decipher the hieroglyphics — by correlating the ten digit telephone numbers of members of the conspiracy (obtained from the wiretaps) with the ten hieroglyphic symbols opposite their names in the phone book. On the basis of the prosecutor's representation, the court overruled appellants' objection, concluding that Donnelly would not be testifying as an expert witness.

After the court ruled, Donnelly testified as follows. First, he explained how he deciphered the hieroglyphics. Using wiretap information, he selected the telephone numbers associated with two of the members of the conspiracy, Homey and MiLagro, whose names appeared in the phone book.¹⁷  Their telephone numbers had ten digits. Looking at the phone book, he found the conspirator's name and aligned the ten digits (contained in the conspirator's phone number) with the hieroglyphic symbols appearing opposite the name; then, going from left to right, he assigned an arabic number to each symbol.¹⁸  When he compared the symbols and phone numbers for these conspirators, he discovered that each symbol represented a specific arabic numeral. In demonstrating how he deciphered the hieroglyphics,¹⁹  Donnelly used a poster board the prosecutor's office had prepared.²⁰  The board had a line of ten numbers, zero to nine, going left to right. A hieroglyphic symbol, representing a specific arabic numeral, appeared above each numeral.

We agree with the district court that Detective Donnelly's deciphering of the hieroglyphics was not based on "scientific, technical or otherwise specialized knowledge." Therefore, the deciphering did not constitute expert testimony within the meaning of Rule 702, and the court did not abuse its discretion in overruling appellants' Rule 702 objection.²¹  We acknowledge that some courts have considered the interpretation of drug ledgers to constitute expert testimony, but in these cases the expert used previously acquired experience or specialized knowledge to interpret the ledger's notations.²²  See e.g., United States v. Ortega, 150 F.3d 937, 943-44 (8th Cir. 1998) (allowing expert testimony of law enforcement agent as to meaning of coded language based on experience); United States v. Tejada, 886 F.2d 483, 486 (1st Cir. 1989) (finding admissible the expert testimony of agents who used their experience with the "lexicon of the cocaine community" to interpret coded words within a notebook). Unlike the witnesses in these cases, Donnelly did not testify as to general drug trafficking techniques, "code" or "slang" words, or use his experience as a narcotics detective to decipher the "hieroglyphics." Donnelly simply took telephone numbers and names from the wiretaps and compared them to the same names in Schery's phone book and to the hieroglyphics appearing next to those names. No scientific, technical or specialized knowledge was required to accomplish this. In a sense, Donnelly did precisely what the prosecutor invited the jury to do in closing argument; the jurors were asked to perform the same exercise Donnelly had carried out in their presence and break the code themselves.

Appellants contend that, if Donnelly's testimony was not that of an expert, it constituted the opinion testimony of a lay witness but failed to satisfy one of the criteria of Rule 701 of the Federal Rules of Evidence, Opinion Testimony by Lay Witnesses. The version of Rule 701 in effect at the time of appellants' trial stated: If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Fed.R.Evid. 701 (amended 2000).

The unsatisfied criterion, appellants say, was the requirement that the witness' testimony be "based on the perception of the witness." Fed.R.Evid. 701(a). Appellants are right; in deciphering the hieroglyphics, Donnelly did nothing more than call the jurors attention to the fact that the hieroglyphics appearing next to the names of two of the conspirators, Homey and MiLagro, in Schery's phone book represented their telephone numbers. For example, "0" represented the number "0." Nothing in the inferences Donnelly drew was based on his perception; rather, the inferences were based on facts already in evidence. As we have observed, Donnelly merely delivered a jury argument from the witness stand.

The problem appellants face is that they did not object to Donnelly's deciphering on this Rule 701 ground.²³  We therefore review the court's decision to allow the testimony under a plain error standard. We may vacate appellants' convictions if (1) there was "error," (2) which was "plain," (3) and which affected appellants' "substantial rights." Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1548-49, 137 L. Ed. 2d 718 (1997). If these three conditions are met, we may exercise our discretion and remedy the error if the error "seriously affect [s] the fairness, integrity, or public reputation of [the] judicial proceedings." Id. at 467, 117 S. Ct. at 1549 (quoting United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d 508 (1993)). In this case, because the evidence of appellants' guilt was overwhelming, the error did not affect appellants' substantial rights, and we provide no remedy.

Appellants next aver that prosecutors vouched for the credibility of six government witnesses while examining the witnesses on direct and on redirect, and while giving their closing argument. The record hardly contains an objection.²⁴  In fact, counsel for Matos never objected to the alleged vouching. Despite the paucity of objections in Cano's case and the total absence of objections in Matos' case, however, we give appellants the benefit of the doubt and afford them plenary review. See United States v. Diaz, 190 F.3d 1247, 1254 (11th Cir. 1999) (stating that plenary review is proper because vouching is a mixed question of law and fact).

Five of the six witnesses appellants identify were accomplices who testified for the prosecution after having pled guilty to a charge (in the instant case or a separate case) or under a letter grant of immunity.²⁵  They were Ruben Carillo, Tania Mohler (Ruben's wife), Michael Burnbaum, Amanda Carillo (Cano's mistress and Carillo's sister), and Michael Stricklin (Cano's worker). The sixth witness was Osvaldo Marcial; he had been indicted and intended to plead guilty in hopes of receiving for his testimony a sentence reduction under Rule 35 of the Federal Rules of Criminal Procedure. During the direct examination of the witnesses who had pled guilty and had been sentenced, the prosecutor, as is usually the case, introduced the plea agreement (if applicable) and had the witness elaborate on what had transpired. The same was true with the accomplices who had pled, but had not been sentenced, and likewise with those testifying on a grant of immunity.²⁶  The cross-examination was conducted along the usual lines — the implication being that the witness was lying in order to obtain favorable treatment. Sometimes the prosecutor, on redirect if it was within the scope of the cross-examination, brought out the fact that the witness could be charged with perjury or emphasized that no promises had been made other than those contained in the plea agreements and letters of immunity (documents which had been introduced into evidence on direct examination).²⁷ 

Appellants also contend that the prosecutor's remarks in closing argument constituted vouching:

All these cooperating witnesses have come in. We don't come in here and say to you that you should believe Ruben Carillo-Rosales because he is a nice guy, a good guy or any reason such as that.

Ladies and gentlemen, the man came in here, as has every cooperating witness, looking for something; namely a reduction in their sentence.

They have come in here. They have agreed to plead guilty. We have a number of their plea agreements which you will see. They are going to go back [to the jury room].

Take a look at the terms. It is required that these defendants, cooperating witnesses, come in and tell the truth, get on the witness stand and talk to you truthfully or the government can charge them with perjury, we can get them with obstruction of justice, we can do a lot of things.

You are going to hear a lot of talk from the defense about how the government basically gets in bed with these people, how we give them the world, how we don't care if they lie on the witness stand.

Ladies and gentlemen, they are required to tell the truth. Yes, the assessment lies with the United States Government whether to file a motion to reduce their sentence. Defendants can't do it. The Judge can't do it. The United States Government is the only one with the power to do that.

We review a claim of vouching under a standard set out in United States v. Castro, 89 F.3d 1443 (11th Cir. 1996). Vouching occurs when:

" [T]he jury could reasonably believe that the prosecutor was indicating a personal belief in the witness's credibility." United States v. Sims, 719 F.2d 375, 377 (11th Cir. 1983), cert. denied 465 U.S. 1034, 104 S. Ct. 1304, 79 L. Ed. 2d 703 (1984). In applying this test, we look for whether (1) the prosecutor placed the prestige of the government behind the witness by making explicit [personal] assurances of the witness's credibility, or (2) the prosecutor implicitly vouched for the witness's credibility by implying that evidence not formally presented to the jury supports the witness's testimony. Sims, 719 F.2d at 377.

Castro, 89 F.3d at 1457.

Appellants' claims fail to meet either standard of the test. The prosecutor only questioned the witnesses regarding the truth-telling portions of their plea agreement and brought out the fact that the agreements stated they were subject to perjury. No jury could reasonably believe these types of questions put the prestige of the government behind each witness or indicated that the prosecutor was implying there was evidence beyond what was presented to the jury that supported the witness' testimony. The alleged vouching in the testimony at hand is similar to the testimony complained of in Castro:

In this case, the prosecutor merely questioned Gelber about the requirements of the plea agreements to testify fully and truthfully. Furthermore, in his questioning of Gelber, the prosecutor merely pointed out that Gelber risked prosecution if he perjured himself. We have found similar questioning proper. See United States v. Sims, 719 F.2d 375, 377 (11th Cir. 1983), cert. denied, 465 U.S. 1034, 104 S. Ct. 1304, 79 L. Ed. 2d 703 (1984).

Castro, 89 F.3d at 1457.

Moreover, we have found it proper for the prosecution to rehabilitate the witness on direct examination if defense counsel attacks the witness' credibility during the opening statement. See United States v. Delgado, 56 F.3d 1357, 1368 (11th Cir. 1995). As in Delgado, the record here discloses vitriolic remarks during defense counsel's opening statements concerning the character and credibility of government witnesses, referring to them as "snitches," "criminals," "master [s] of manipulation," and informants with an "axe to grind."

As for the remarks in closing argument, it becomes obvious from a reading of the record that appellants' principal argument to the jury in closing would be that none of these witnesses — continually called "snitches" throughout appellants' closing arguments — were worthy of belief. The evidence of guilt was so overwhelming that attacking these witnesses was about all defense counsel could do. In other words, counsel concentrated on the credibility of these witnesses and ignored the prosecution's other evidence. In fact, in rebuttal argument, the prosecutor invited the jury to disregard the accomplice testimony altogether and to focus on the other evidence, contending that such other evidence was so strong that the jury could convict on it alone.

Even if the prosecutor's questions during examination and remarks at closing constituted vouching, we hold that they were harmless and did not prejudice any substantial right of the defendants. Consequently, we find that no prosecutorial misconduct occurred with respect to impermissible vouching.

Count 13 of the indictment charged Cano with possession with intent to distribute marijuana from March 1 to May 31, 1995. Cano was convicted on that count and the district court sentenced him to life imprisonment pursuant to 21 U.S.C. § 841(b) (1) (A). Neither the presentence investigation report ("PSI") nor the record of the sentencing hearing established that Cano possessed any quantity of marijuana during that time period. Although Cano's defense counsel did not raise this issue on appeal, and the Government has ignored the point, we review it for plain error.

We find plain error. The absence of any evidence to support the charge constitutes error. The error is plain, affects Cano's substantial rights,²⁸  and affects the fairness, integrity, and public reputation of the proceeding on Count 13. Cano's conviction on that count is therefore vacated.

For the foregoing reasons, the district court's judgment against Cano on Count 13 is VACATED, and the district court is directed to dismiss the count. Appellants' convictions and sentences are otherwise AFFIRMED.

SO ORDERED.