United States v. Malagon, No. 18-3200 (7th Cir. 2020)
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At Malagon’s trial for conspiracy with intent to distribute cocaine and possession of cocaine with intent to distribute, 21 U.S.C. 846, 841(a)(1), the government introduced cell phone records, audio and video recordings and their transcripts, and witness testimony, including from undercover officers, concerning two meetings involving an informant. The recordings captured conversations about quantity, price, and timing. At the end of the second meeting, surveillance officers moved toward the house’s garage. Hearing them, Malagon tried to hide the cocaine. Officers saw the kilograms against the garage wall and a blue cooler that Malagon had previously been observed carrying. They arrested Malagon, and on one of his cell phones that they seized, they found a photograph of the two kilograms of cocaine. Malagon was convicted. The court imposed a below-Guidelines sentence of 60 months’ imprisonment, the statutory minimum.
The Seventh Circuit affirmed, rejecting Malagon’s arguments that DEA agents were improperly allowed to present expert testimony as to drug trafficking practices and the use of drug code, and to present lay opinion testimony. Malagon failed to demonstrate an error that was not intentionally waived, which was plain and affected his substantial rights, and that the error affected the fairness, integrity or public reputation of the judicial proceedings.
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