United States v. Gonzalo Garcia-Avila

In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1313

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GONZALO GARCIA-AVILA,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 10 CR 155 — Joan Humphrey Lefkow, Judge.

ARGUED NOVEMBER 5, 2013 — DECIDED DECEMBER 13, 2013

Before BAUER, WILLIAMS, and SYKES, Circuit Judges.

BAUER, Circuit Judge. Gonzalo Garcia-Avila (“Garcia”)

was charged with two counts: conspiracy to distribute and

possess with intent to distribute methamphetamine and

attempted distribution of methamphetamine. 21 U.S.C. §§ 846

and 841(a)(1). A jury convicted Garcia of both counts, and he

now appeals. He contends that the district court erred when it

(1) allowed expert testimony to taint the jury and (2) admitted

evidence of his prior ecstasy transactions. He also argues that

2 No. 13-1313

the prosecution’s improper statements during rebuttal argu-

ments unfairly prejudiced the jury. We find no error for the

reasons that follow.

I. BACKGROUND

This appeal relates to Garcia’s involvement in planning a

drug deal that took place on March 1, 2010.

A. The Meeting on February 24, 2010

In exchange for an immunity agreement, a confidential

informant (“CI”) agreed to pose as an individual looking to

buy drugs. On February 24, 2010, the CI met with Pedro

Quiroz (“Quiroz”), whom he had known for several years, as

well as three other men—Francisco Mendez (“Mendez”),

Carlos Figueroa (“Figueroa”), and Garcia. Unbeknownst to

these men, the CI wore a wire and was secretly recording the

conversations that took place. At the meeting, the CI expressed

interest in purchasing “ice,” a slang term for methamphet-

amine, as well as other drugs. Garcia told the CI that he would

sell him one or two pounds of methamphetamine for $30,000.

The CI asked if methamphetamine was “the only kind that’s

gonna arrive now,” and Garcia responded that he could get

“some of the other stuff too,” referring to ecstasy. The CI asked

Garcia what he charged for a “bottle,” and Garcia stated, “[t]he

last one they sent me … [cost] 450.” At the end of the meeting,

the CI shook hands with Garcia, and then departed with

Mendez and Quiroz.

No. 13-1313 3

B. The Drug Bust on March 1, 2010

After the meeting, Garcia, Mendez, Quiroz, Figueroa, and

Rosendo Jimmenez (“Jimmenez”) were in frequent contact.1

Quiroz called the CI and informed him that the deal was set to

take place on March 1, 2010. The CI worked in concert with

DEA agents to prepare for the drug bust. On March 1, 2010, the

CI and an undercover DEA agent drove in separate vehicles to

meet with Mendez and Quiroz; the CI again wore a wire and

secretly recorded the conversations that took place. The

undercover agent had $36,000 hidden in a secret compartment

in his van; he handed the money to Mendez, and allowed him

to inspect it. He told Mendez he would get the money once the

exchange was made.

The CI then drove with Mendez and Quiroz to a grocery

store near 79th and Pulaski to complete the deal. Mendez

explained that Garcia wanted the CI to call the agent and tell

him to remove the money and turn over his van so it could be

loaded with drugs. The CI told Mendez, however, that the

agent was unwilling to give up his vehicle, so the conspirators

decided to load the drugs into the CI’s car instead. Figueroa

asked the CI if it was okay to “throw [the drugs] in the trunk

for you?” and the CI assured him that it was. The CI then

exited his vehicle and left the car running with his keys in the

ignition. Figueroa drove away in the CI’s car.

1

Phone records show that between February 24, 2010, and March 1, 2010,

there were 115 contacts between Garcia and Mendez, 65 contacts between

Garcia and Figueroa, 17 contacts between Garcia and Jimmenez, and 34

contacts between Mendez and Quiroz.

4 No. 13-1313

A short time later, DEA agents stopped a different car,

which Figueroa was driving. Garcia was a passenger in the car.

The agents recovered a set of keys from Garcia; it included a

key to the CI’s vehicle. Agents then used the key to open the

CI’s vehicle; they found a plastic bag containing 888.2 grams of

pure methamphetamine on the front passenger seat. The drugs

had a street value of $355,000.

On March 2, 2010, Garcia, Quiroz, Mendez, Figueroa, and

Jimmenez were charged in a complaint, alleging that they had

intentionally and knowingly conspired to distribute metham-

phetamine on March 1, 2010. They were later named in

indictments returned by a grand jury.

C. The Trial

Figueroa, Jimmenez, Quiroz, and Mendez were indicted

alongside Garcia, but Garcia was granted a separate trial. On

June 29, 2011, the government filed a pre-trial motion to admit

evidence concerning Garcia’s ability to obtain ecstasy as well

as methamphetamine. On July 20, 2011, the court ruled that

this evidence was admissible.

At Garcia’s trial, Jon Johnson (“Johnson”), a DEA agent

with 24 years of experience, was qualified as an expert. The

prosecution provided Johnson with transcripts of the conversa-

tions that took place on February 24, 2010, and March 1, 2010.

He gave his opinions about the meaning of certain code words

used during the conversations as well as statements made by

Garcia. On direct examination, Johnson was asked numerous

questions beginning with, “What do you understand [Garcia]

to mean when he said …?” Defense counsel never objected to

the form of these questions or to Johnson’s responses. On

No. 13-1313 5

cross-examination, Johnson made clear that he (1) had not

participated in any aspect of the investigation, (2) had not

listened to the recordings or to trial testimony, (3) did not have

personal knowledge about the speakers identified in the

transcripts, and (4) could not authenticate the voices identified

in the transcripts.

During closing arguments, the prosecutor stated, “[Garcia

is] sitting there with Carlos Figueroa, who is using all the lingo

about methamphetamine deals and Ecstasy deals … . It’s not

a coincidence that … this conversation is entirely in slang and

in code words … . [Garcia is] using those words because he

understands them. He knows them, and he does these things.”

Defense counsel made no objections.

On August 1, 2011, after six days of trial, the jury convicted

Garcia of both counts. He was sentenced to 120 months’

imprisonment and timely appealed to this Court.

II. DISCUSSION

Garcia argues that his conviction should be vacated and

that his case should be remanded for a new trial. He contends

that the district court erred by admitting the expert testimony

of Johnson, and by allowing evidence of his prior ecstasy

dealings. He also claims that the prosecutor’s statements

during rebuttal arguments unfairly prejudiced the jury.

A. Johnson’s Expert Testimony

Garcia contends that the district court abused its discretion

by admitting Johnson’s expert testimony. Garcia does not

object to Johnson’s qualifications as an expert. Instead, he

objects to Johnson’s testimony, which he contends unfairly

6 No. 13-1313

prejudiced the jury. Normally, we review a district court’s

admission of expert testimony for abuse of discretion. United

States v. Pansier, 576 F.3d 726, 738 (7th Cir. 2009). However,

since defense counsel failed to object to Johnson’s testimony

at trial, this issue must be reviewed for plain error. United

States v. Canady, 578 F.3d 665, 669 (7th Cir. 2009). “Under the

plain error standard, we must determine whether there was

(1) an error, (2) that was plain, meaning clear or obvious,

(3) that affected the defendant’s substantial rights in that

he probably would not have been convicted absent the error

and, (4) that seriously affected the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Christian,

673 F.3d 702, 708 (7th Cir. 2012).

Federal Rule of Evidence 704(b) states:

In a criminal case, an expert witness must not state

an opinion about whether the defendant did or did

not have the mental state or condition that consti-

tutes an element of the crime charged or of a de-

fense. Those matters are for the trier of fact alone.

This Court has held that experts may testify as to the way

drug dealers operate and to the meaning of code words dealers

use as long as the testimony is based on their expert opinion

and not on the defendant’s specific mental processes. United

States v. Are, 590 F.3d 499, 512–13 (7th Cir. 2009); United States

v. Avila, 557 F.3d 809, 820 (7th Cir. 2009); United States v.

Ceballos, 302 F.3d 679, 687–88 (7th Cir. 2002). In United States v.

Lipscomb, 14 F.3d 1236, 1243 (7th Cir. 1994), for example, we

upheld the district court’s admission of expert testimony

because officers testified that their opinions were based on

No. 13-1313 7

their knowledge of “common practices in the drug trade” and

not on “some special familiarity with the workings of

Lipscomb’s mind.” We stated:

When a law enforcement official states an opinion

about the criminal nature of a defendant’s activities,

such testimony should not be excluded under Rule

704(b) as long as it is made clear, either by the court

expressly or in the nature of the examination that the

opinion is based on the expert’s knowledge of

common criminal practices, and not on some special

knowledge of the defendant’s mental processes.

Id. at 1242.

Similarly, in Are, we held that the admission of expert

testimony about “coded language” did not violate Rule 704(b),

since the expert based his testimony on his experience and

training. 590 F.3d at 513. The expert made clear that he had not

interviewed any witness in relation to the trial, and had not

reviewed any documents in connection with the case, other

than the transcripts. Id. We concluded that it was “apparent

that Coleman testified as an expert on the basis of his knowl-

edge of drug dealers’ use of coded language generally and not

on some special knowledge of the defendant’s mental pro-

cesses or mental states.” Id.

In the instant case, Johnson was asked several questions

beginning with, “What do you understand [Garcia] to mean

when he said …?” While the phrasing of these questions may

have alluded to Garcia’s mental state, Johnson made clear to

the jury that he was not testifying based on personal knowl-

edge. He testified that he (1) could not vouch for the accuracy

8 No. 13-1313

of the transcripts, (2) had not listened to the recordings of the

conversations that took place on February 24, 2010, and

March 1, 2010, and (3) lacked personal knowledge of the

identities of any of the speakers. In addition, on cross-examina-

tion, Johnson admitted that he had not participated in any

aspect of the investigation. Johnson made clear that he was not

testifying based on “some special familiarity with the workings

of [Garcia’s] mind,” but instead, was relying upon his 24 years

of experience and his “knowledge of common criminal

practices” in order to help the jury understand coded language

related to drug transactions. Lipscomb, 14 F.3d at 1242–43.

This is not a case where Johnson was testifying both as

an expert and as a lay witness, where the risk of unfair preju-

dice is more troublesome. See, e.g., Lipscomb, 14 F.3d at 1242

(“Testimony is understood to carry dangers of its own,

particularly when the expert is also one of the officers involved

in the arrest.”). Here, Johnson testified only as an expert

witness; he had no prior links to Garcia, nor had he partici-

pated in investigating the case.

Furthermore, defense counsel never once objected during

Johnson’s testimony, either to the form of the questions, or to

Johnson’s responses. Thus, even if portions of Johnson’s

testimony were admitted in error, we can reverse only if

the error “seriously affected the fairness, integrity, or public

reputation of judicial proceedings.” Christian, 673 F.3d at 708.

We find no error here; reversal on this ground is not war-

ranted.

No. 13-1313 9

B. Admission of 404(b) Evidence Related to Garcia’s

Prior Ecstasy Activities

Garcia also argues that the district court abused its discre-

tion when it admitted evidence of his prior ecstasy transac-

tions. He claims that this evidence was used for propensity

purposes and unjustly prejudiced the jury against him.

When a trial court admits evidence over a defendant’s

objection, we review the district court’s ruling for abuse of

discretion. Avila, 557 F.3d at 819. “The district court’s eviden-

tiary rulings are afforded special deference and will be

reversed ‘only where no reasonable person could take the view

adopted by the trial court.’” United States v. Reese, 666 F.3d

1007, 1015 (7th Cir. 2012) (quoting United States v. Vargas, 552

F.3d 550, 554 (7th Cir. 2008)). “Even when an abuse of discre-

tion occurs, however, reversal only follows if admission of the

evidence affected the defendant’s substantial rights.” United

States v. Richards, 719 F.3d 746, 758 (7th Cir. 2013). This Court

asks “whether an average juror would find the prosecution’s

case significantly less persuasive without the improper

evidence.” United States v. Miller, 673 F.3d 688, 700 (7th Cir.

2012).

Rule 404(b) bars the admission of evidence of “a crime,

wrong, or other act” committed by the defendant when it is

used to “show a defendant’s propensity to commit a crime,

[or] to show that he or she acted in conformity with that

propensity on the occasion in question.” United States v. Jones,

389 F.3d 753, 756 (7th Cir. 2004). This evidence, however, may

be admissible “for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity,

10 No. 13-1313

absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).

To determine if 404(b) evidence is admissible, this Court

employs a four-part test. Evidence is admissible if (1) the

evidence is directed towards establishing a matter other than

the defendant’s propensity to commit crimes charged, (2) the

other act is similar and close enough in time to be relevant,

(3) the evidence is sufficient to support a jury finding that the

defendant committed the other act, and (4) the probative value

of the evidence is not substantially outweighed by the danger

of unfair prejudice. United States v. Reese, 666 F.3d 1007, 1015

(7th Cir. 2012) (quoting United States v. Baker, 665 F.3d 677, 681

(7th Cir. 2011)).

During their conversation on February 24, 2010, the CI

asked Garcia how much he charged for a “bottle,” meaning

ecstasy. Garcia responded, “Let me call him. The last one they

sent me … 450,” which the CI took to mean that a bag of

ecstasy tablets cost $450. Garcia also added, “some; if you

want, next time he comes, right? He’ll bring you some.” The

court allowed evidence of Garcia’s ecstasy-related comments

over defense counsel’s objections, explaining that “the mention

of other substances that are available or that may become

available does have probative impact in this case.” The court

allowed the evidence “with the clear understanding that it

should not reference or in any way indicate the prior transac-

tions.”

While Garcia asserts that the evidence should be evaluated

under Rule 404(b), the government argues, as it did in the

district court, that the ecstasy evidence is direct evidence of the

charged methamphetamine crimes and therefore is not “other

acts” evidence in the first place. We need not definitively

No. 13-1313 11

resolve this evidentiary dispute; even if the ecstasy evidence

falls within the scope of Rule 404(b), any possible error related

to its admission was harmless, and did not affect Garcia’s

substantial rights. The evidence implicating Garcia in the

methamphetamine transaction was more than sufficient to

support his conviction. In the days leading up to the drug bust,

Garcia exchanged numerous phone calls with other members

of the drug conspiracy. He was in frequent contact with his co-

conspirators on the day the drug deal took place. When Garcia

was arrested after the drug transaction was complete, he

possessed the keys to the CI’s car, where the methamphet-

amine had been placed. Taken together, these facts establish

that Garcia was integral in organizing and implementing the

methamphetamine deal that took place on March 1, 2010. Thus,

any error related to the admission of the ecstasy evidence was

harmless.

C. The Prosecutor’s Statement in Rebuttal Arguments

Finally, Garcia argues that the government made an

improper propensity inference during its rebuttal argument

that unfairly prejudiced the jury against him. When reviewing

a claim of prosecutorial misconduct, we first consider whether

the remark was improper; then we consider whether it

prejudiced the defendant. United States v. Serfling, 504 F.3d 362,

377 (7th Cir. 2007). “Improper statements made during closing

argument are rarely reversible error.” United States v. Bowman,

353 F.3d 546, 550 (7th Cir. 2003) (citing United States v. Ander-

son, 450 F.3d 294, 300 (7th Cir. 2006)). “Ultimately, the inquiry

turns on whether the improper statement ‘so infected the trial

with unfairness as to make the resulting conviction a denial of

12 No. 13-1313

due process.’” Id. (quoting Darden v. Wainwright, 477 U.S. 168,

181 (1986)).

Garcia never objected to the prosecutor’s “and he does

those things” comment at trial, but now argues on appeal that

this statement was improper. “When a defendant objects for

the first time on appeal that a prosecutor made improper

comments during closing arguments, we review only for plain

error.” United States v. Turner, 651 F.3d 743, 751 (7th Cir. 2011);

United States v. Bowman, 353 F.3d 546, 550 (7th Cir. 2003). Since

Garcia failed to object to this comment at trial, he must show

“not only that the remark[] denied him a fair trial, but also that

the outcome of the proceedings would have been different

absent the remark[].” Id. (quoting United States v. Sandoval, 347

F.3d 627, 631 (7th Cir. 2003)).

Here, Garcia asserts that when the prosecutor said, “and he

does those things” during rebuttal arguments, he was suggest-

ing that Garcia had a history of dealing drugs, which unfairly

prejudiced the jury against him. This statement standing alone,

however, was insufficient to “so infect the trial with unfair-

ness” as to deny Garcia a fair trial. In Turner, we held that a

prosecutor’s “once a drug dealer, always a drug dealer”

argument did not constitute plain error. 651 F.3d at 752. We

explained that “so long as the evidence supports the com-

ments, prosecutors may speak harshly about the actions and

conduct of the accused.” Id. (quoting United States v. Durham,

211 F.3d 437, 440 (7th Cir. 2000)). Here, the prosecutor’s

statement was based upon the transcripts presented at trial.

The outcome of Garcia’s trial did not turn on this lone remark

by the prosecutor, and we find no plain error.

No. 13-1313 13

III. CONCLUSION

We find that the court did not err when it (1) admitted the

expert testimony of Johnson and (2) allowed evidence of

Garcia’s comments related to his prior ecstasy dealings. We

also find no error related to the prosecutor’s statements during

rebuttal arguments. For these reasons, we uphold Garcia’s

convictions and AFFIRM the decision of the district court.