COFFEY, Circuit Judge.
Felipe Vega appeals his convictions and sentences on charges of conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and of utilization of a communications facility in committing such an offense in violation of 21 U.S.C. § 843(b). We affirm.
I. FACTUAL BACKGROUND
Felipe Vega was originally charged in a 61-count indictment charging 32 defendants with various drug conspiracy violations. This was the same indictment involved in our decision in United States v. Zambrana, 841 F.2d 1320 (7th Cir.1988). As we detail, infra, Vega's case was severed, on his own motion, from those of the other defendants named in the Zambrana indictment.
Vega's indictment stemmed from a United States Drug Enforcement Agency (DEA) investigation, coordinated with local law enforcement agencies, of drug trafficking carried on by the Zambrana family and others in the northwest Indiana area. As part of the investigation a court-authorized wiretap was placed on the telephone at the residence of Jesus Zambrana in Gary, Indiana, from March to July, 1985. On the basis of the wiretap it was learned that the Zambranas were carrying on a sophisticated drug trafficking operation and were to receive a cocaine shipment in Gary, Indiana, on April 25, 1985. This shipment originated with an Antonio Dominguez in Miami, Florida. The cocaine was to be transported to the Zambranas by automobile.
On the evening of April 25, 1985, the DEA established surveillance at various points on highway routes leading into Gary, Indiana. The purpose of this surveillance was to intercept a vehicle transporting suspected drugs from Florida to Gary, Indiana. As an aid to the surveillance procedure, DEA Agents Michael Ehrsam and Elaine Harris prepared a list containing names of possible drivers of the vehicles as well as descriptions of the cars.
As part of this surveillance operation, DEA Agent Ehrsam and four Lake County, Indiana, Sheriff's Officers stationed themselves on the northbound lanes of Interstate 65 at the intersection of State Route 231 in the Crown Point, Indiana, area. This location was roughly 15 miles from the Zambrana house. While on surveillance, Agent Ehrsam and Lake County, Indiana, Sheriff's Department Patrolman Timothy Downs observed a rose-colored 1984 Oldsmobile driving in an erratic manner. Ehrsam and Downs followed the vehicle for three or four miles and then directed the driver to pull over. Officer Downs requested the driver's license and registration of the vehicle's operator. The driver's name was Ernest Lonzo, an individual whose name appeared on the DEA's list of possible drug transfer drivers. Officer Downs then ran a check on Ernest Lonzo's driver's license as well as the involved vehicle's registration. Downs discovered that Lonzo was operating a vehicle with a suspended driver's license. Lonzo was arrested and transported to the Lake County Sheriff's Department, together with his passenger, Charles Cole.
Lonzo's automobile was impounded at the Lake County Sheriff's Garage in Crown Point, Indiana, and was thereafter searched pursuant to a search warrant issued on April 25, 1985. Found in the automobile were two brown plastic garbage bags and two packages bound with grey furnace tape. The two garbage bags each contained two packages bound with grey furnace tape. All six of the packages bound with grey furnace tape contained a white powdery substance. The packages were sent to the DEA lab where they were tested and found to contain 5,847.01 grams of 92 per cent pure cocaine.
The identification of the participants in the recorded telephone conversations was questioned at trial. In the eight tapes involving Felipe Vega, his voice was identified by St. John, Indiana, Police Detective Bernard J. Johnsen, who testified on both direct and cross-examination that it was his opinion that Vega's voice was recorded on eight tapes out of the nine tapes submitted to him for identification.
Officer Johnsen's identification of Vega's voice on the tapes was based upon a comparison of Vega's recorded voice with Johnsen's recollection of Vega's voice during a two-hour conversation he had with Vega approximately two years prior to trial. Johnsen's conversation with Vega at that time had been in English, although he had also had an opportunity to listen to Vega speaking in Spanish with another agent during the same two-hour conversation. Vega attempted to challenge Johnsen's lay identification of Vega's voice on the basis of Officer Johnsen's inability to speak Spanish and the fact that Johnsen had not previously spoken with Vega on the telephone. It is interesting to note that the cross-examination of Johnsen did not focus on his observation of the specific aspects of Vega's voice.
Most of the telephone calls between Felipe Vega and the drug headquarters at the Zambrana residence were in Spanish. Much of the conversation was of an informal nature, with the parties advisedly not using words referring to drugs. The government, however, focuses on certain code words which it contends are known and accepted in the drug world.
Tom Lovely, an active and convicted member of the same Zambrana drug conspiracy, testified that Jay Zambrana instructed Lovely to use "code words" when speaking about drugs on the telephone.
In his conversations with the Zambranas, Vega frequently used words such as "chickens," "roosters," or "it," which the government contends represented code words commonly used in the drug world. It should be noted that while Tom Lovely, when questioned, did testify that the Zambranas had chickens on their farm, the record is devoid of evidence either that the Zambranas or Vega bartered, traded or dealt in chicken sales at any time.
The use of "code words" like "chicken" in Vega's conversation with the Zambranas can be noted in the August 11, 1985 conversation between Felipe Vega and Jay Zambrana, which is the basis of a use of a communications facility charge against Vega:
This conversation followed a March 21 conversation between Vega and another person at the Zambrana residence. In this conversation Felipe Vega asked if Jesus Zambrana could get him four "chickens." This conversation also followed a March 29 taped conversation in which Vega spoke at length with someone at the Zambrana residence concerning exchanges of a "chicken" and "roosters." Subsequently, on April 30, 1985, Felipe Vega had another conversation with a person at the Zambrana residence. In this conversation Vega stated that "it" was good. Later Vega and this person spoke about "the price" Jesus Zambrana was asking. Each of these conversations took place in close and near proximity to the time of the law enforcement officers' April 25 interception of the Zambranas' drug delivery.
The next conversation between Vega and the Zambrana household occurred on June 14, 1985, when Vega spoke with Jesus Zambrana. Zambrana said that they were "still waiting." In light of the drug shipment the government contends was en route to Zambrana, referred to in the June 23, 1985, conversation between known drug conspirators Antonio Dominguez and Jesus Zambrana, the jury could very logically have inferred that Zambrana and Vega were "still waiting" with bated breath for the expected drug shipment. After speaking about work-related matters, Vega and Zambrana ended their conversation by agreeing that Vega would call the next day. On June 18, 1985, Jesus Zambrana told Vega that they were "still waiting for (unintelligible) of the passage" and that he would "let [Vega] know when." Later on in that conversation the following exchange took place:
(Emphasis added). Felipe Vega called Jesus Zambrana again on June 21 and was told that they were "waiting." On June 28, 1985, Felipe Vega again called Jesus Zambrana inquiring when Zambrana was going to "take care "of him. Zambrana
Finally, on July 2, 1985, a woman identifying herself as Felipe Vega's wife called Jesus Zambrana and during her conversation asked "[n]othing yet?" Zambrana answered that "the associate is leaving in the evening." The woman then mentioned that Felipe Vega was in Puerto Rico and asked whether Zambrana had "anything." A period of inquiry about each other's identity followed. When the woman made clear she was Felipe Vega's wife, Zambrana was evidently satisfied and stated she could "come by." However, he added that if she was going to come she should let Zambrana know so he could have "everything ready." Again, in light of the continued inquiry concerning arrival times in a conversation following earlier taped conversations of the same nature, this discussion appears consistent with the arrival of the awaited drug shipment to the Zambranas in this time frame. The woman said I need four "with the wedding." These words appear to be the type of "nonsensical language" which is employed as code language for illegal drugs. See United States v. Ramirez, 796 F.2d 212, 215 (7th Cir.1986) ("Witness at the trial explained that the nonsensical language employed by the conversants was a code for illegal drugs" ). Zambrana indicated assent and asked if the woman was going to "send the guy now." She said she would send him to Zambrana's house later that night, to which Zambrana agreed.
II. PROCEDURAL BACKGROUND
A grand jury handed down an indictment charging Felipe Vega with conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 and of utilization of a communications facility in committing the conspiracy offense in violation of 21 U.S.C. § 843(b), as part of the 61-count indictment of 32 defendants in U.S. v. Zambrana. Vega entered his initial appearance on July 30, 1985. On August 27, 1985, Vega filed a motion for severance alleging prejudicial joinder. Vega's severance motion was one of many filed by codefendants following the indictment.
The case was assigned to then District Judge Michael Kanne. On October 7, 1985, Judge Kanne entered an order severing Jesus Zambrana's case from that of his codefendants and continuing trials in all the cases. Jesus Zambrana's trial was set for October 21, 1985, and the trial of the remaining defendants was set for November 4, 1985. The order also continued the involved trials to further the ends of justice pursuant to 18 U.S.C. § 3161(h)(8)(A). The order noted that a 61 count indictment charging all 32 defendants was presently filed in a single case, with a number of attorneys involved. The court further observed that this was "a case of extensive proportions presenting extremely complex problems in assuring a fair trial." The court determined that the most appropriate course for it to take would be to "acknowledg[e] the existence of a judicial emergency under 18 U.S.C. § 3161(h)(8)" and utilize severance procedures. Under this method the court would "initially proceed with one trial involving a single defendant and, in accordance with the declared judicial emergency, continue the trials of remaining defendants subject to severance where appropriate." The court further noted that
The court followed its continuance order with an October 11, 1985, order setting a trailing calendar of individual trials for most defendants and stating that joinder of defendants would be ordered where appropriate. Felipe Vega's trial was to be the 21st of the 23 scheduled trials.
On April 17, 1987, when Vega's trial was set for June 7, 1987, he moved to dismiss with prejudice under the Speedy Trial Act.
The court denied the motion on June 10, 1987. The court noted the actions it had taken in 1985 and also addressed Vega's contention that the judicial emergency declared in 1985 had ceased to exist. The court observed that Vega had made no showing that he had been prejudiced by the delay, a requirement for reversal of an exclusion of time under the Speedy Trial Act. The court further noted that a judicial emergency had been caused. This emergency had resulted because this case involved many non-English-speaking defendants, and the 32 defendant indictment had been assigned to a single judge. This case followed another multi-defendant drug case assigned to the same judge and was pending in addition to the court's normal civil and criminal calendar. Delays in some cases obviously were going to be necessary in order that the court might address and protect the rights of all parties.
On August 25, 1987, Vega moved to have the court reconsider its June 10, 1987, ruling denying dismissal on Speedy Trial Act grounds. The motion stated that many of the trials in the Zambrana cases had taken less than a week and cited several specific civil cases tried during the period following the original indictment.
Upon Judge Kanne's elevation to the appellate court, the case was transferred to Judge Sharp, who denied the motion in an order dated September 8, 1987. The court, in its ruling, observed that there had been no showing of prejudice as a result of the exclusion. Delay was also attributed to the attention required to be given other cases as well as the effect on the court calendar resulting from Judge Kanne's elevation to the appellate court.
The trial took place on September 9-11, 1987, and the jury convicted Vega on the two charges of conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a) and of utilization of a communications facility in committing such an offense in violation of 21 U.S.C. § 843(b) which were submitted for verdict.
Vega was sentenced on October 21, 1987. At that time the court noted the seriousness of Vega's crimes and made the following statements:
Vega challenges his conviction and sentence on five separate grounds: (1) that the court refused to dismiss his case pursuant to the Speedy Trial Act; (2) that the procedure for identification of Felipe Vega's voice was impermissibly suggestive, and the identification itself was unreliable; (3) that tape-recorded conversations were admitted in which speakers were not identified; (4) that the evidence was insufficient to prove Vega's involvement in the conspiracy; and (5) that the court's use of the federal sentencing guidelines prior to their effective date violated the constitutional protection against ex post facto laws.
III. SPEEDY TRIAL ACT
The Speedy Trial Act generally requires that trials in criminal cases commence within 70 days of the filing date of the information or indictment, or from the date of initial appearance, whichever last occurs. 18 U.S.C. § 3161(c)(1). However, the Act provides that several periods of time may be excluded from this 70-day period. 18 U.S.C. § 3161(h). Among the permitted exclusions is delay "resulting from a continuance granted ... on the basis of ... findings that the ends of justice served by [the continuance] outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A).
An "ends of justice" continuance must be granted before "the period sought to be excluded begins to run."
In evaluating the propriety of this continuance we must determine whether it was based on the impermissible consideration of general docket congestion. The district court's findings supporting the continuance clearly set forth that the large number of defendants and the number of counts involved in the Zambrana case made it unlikely that the trials of all defendants could occur within the prescribed time limits. The court also observed that severance would likely be necessary in some cases and that such severance would more adequately serve the ends of justice, as well as result in some delay. The district judge obviously could have delayed a single multi-defendant trial based upon its complexity. See 18 U.S.C. § 3161(h)(8)(B); United States v. Thomas, 774 F.2d 807, 810 (7th Cir.1985) (Ends of justice continuance appropriate based on complexity of six-defendant case involving extensive documentary evidence). It necessarily follows that delays resulting from the severance essential to preserve individual rights in a specific, complex multiple-defendant proceeding, especially when requested by a defendant, are not to be considered "general"
Since the court did not rely upon an impermissible factor in granting the continuance, we proceed to review its decision to allow a continuance under 18 U.S.C. § 3161(h)(8)(A). This court has noted that "the decision to grant a continuance under the Speedy Trial Act, and accompanying decision to exclude the delay under (h)(8)(A) is addressed to the discretion of the trial court. To obtain a reversal of the court's decision a defendant must show actual prejudice." United States v. Tedesco, 726 F.2d 1216, 1221 (7th Cir.1984) (citation omitted). See also United States v. Scott, 784 F.2d 787, 789 (7th Cir.1986) (per curiam) ("Absent legal error, exclusions of time cannot be reversed except when there is an abuse of discretion by the court and a showing of actual prejudice"). There is nothing in this record to substantiate a holding that the district court's grant of the continuance constituted an abuse of discretion.
Vega contends, also, that his case should be dismissed because the conditions the district court originally relied upon in granting its continuance had ceased to exist in the period following its entry. We disagree and hold that an argument of this nature does not and will not support the dismissal requested. As we noted supra, the question of the propriety of an ends of justice continuance is directed to the district court's exercise of discretion at the outset of a proceeding. Janik, 723 F.2d at 545. If conditions change following the granting of the continuance, they may justify an adjustment in the court's trial calendar involving an advancement or a rescheduling of the trial date, but they will not justify dismissal of a case in which a valid continuance or adjournment has been granted. In this respect this case appears analogous to United States v. Carlone, 666 F.2d 1112, 1115-16 (7th Cir.1981) in which we disapproved of a district court's retroactive revocation of a continuance based upon changes occurring after the continuance's entry. We stated:
Id. at 1115 (emphasis in original). Just as the changes in Carlone did not require (or even permit) the district court to retroactively vacate the continuance and effectively dismiss the case,
IV. VOICE IDENTIFICATION OF VEGA
Vega argues that the procedures utilized to identify his tape-recorded voice were impermissibly suggestive and that the identification was unreliable.
In United States v. Zambrana, 841 F.2d 1320, 1338, 1339 (7th Cir.1988), we laid out our general standard concerning the admissibility of tape recordings:
There is little question that Officer Johnsen's identification of Vega's voice meets the requirements of Federal Rule of Evidence 901(b)(5) which permits voice identification of tape recordings to be made "by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker." As long as the basic requirement of familiarity with the voice is met, lay opinion testimony is an acceptable means for establishing a speaker's identity. See United States v. Thomas, 586 F.2d 123, 133 (9th Cir.1978) ("lay opinion on [voice identification] is permissible so long as the witness testifying has this requisite familiarity with the speaker"); Federal Rule of Evidence 901 advisory committee note to subdivision (b) — example (5) ("[A]ural voice identification is not a subject of expert testimony"). When this standard is considered in light of the broad discretion accorded trial court judges in making these admissibility determinations, there would certainly appear to be no bar to an identification which has been made based upon one previous two-hour contact with the speaker. Any questions concerning the length of Officer Johnsen's previous contact with Vega or the time between this contact and the identification, simply go to the weight the jury accords this evidence, not to its admissibility. See United States ex rel. Kosik v. Napoli, 814 F.2d 1151, 1156 n. 9 (7th Cir.1987) (Eyewitness identification case distinguishing the role of the judge and jury by differentiating between "the degree of reliability needed to admit identification evidence, on the one hand, or to credit it in case it is admitted, on the other").
In this case the question of the identification's alleged "suggestiveness" also does not create any significant difficulty. The government asserts that Vega waived his right to object to his identification on the basis of suggestiveness because he failed to raise that objection before the trial court. Although Vega objected to the admission of tape recordings on which his voice was alleged to appear on the basis of the "insufficiency" of his identification and questioned the identification procedures during Officer Johnsen's testimony, he
(Citations and footnote omitted) (emphasis added). Accordingly, the standard for review of any "suggestiveness" claim would be the "plain error" doctrine of Rule 52(b) of the Federal Rules of Criminal Procedure. Id.
The standard of review to be applied ultimately makes little difference in this case because, under any review standard, it is evident that the identification procedure used here was not "suggestive." In Zambrana, 841 F.2d at 1339, we reviewed the alleged "suggestiveness" question as part of our analysis of the district court's general resolution of the question of a tape's admissibility. In rejecting a claim of "suggestiveness," we observed:
This case clearly requires the same disposition of the "suggestiveness" question as we made in Zambrana. A request that a police officer ascertain if a particular individual's voice is on a certain tape or tapes, some of which apparently included his voice and another which did not, cannot create the "substantial likelihood of irreparable misidentification" we have required to be demonstrated as a prerequisite for finding other types of pretrial identification procedures "suggestive." See generally United States v. L'Allier, 838 F.2d 234, 239 (7th Cir.1988) (photographic identification case); United States ex rel. Kosik v. Napoli, 814 F.2d 1151, 1155 (7th Cir.1987) (eyewitness identification case). Moreover, because Officer Johnsen's identification and dismissal of identification of Vega's voice was certain, was made consistently throughout a series of nine tapes, and was made without any real or inferred "suggestion," Officer Johnsen's independent familiarity with Vega was not supplanted. See
We emphasize that our decision that the trial judge properly exercised his discretion in allowing the jury to consider Officer Johnsen's identification of Vega's voice and the tape recordings themselves is likewise based upon our position as a reviewing court. We have previously stated in an eyewitness identification case that as a reviewing court: "It is, of course, not our function in this setting to judge the ultimate accuracy of the identification; that decision [is] made by the jury in its role as finder of the facts. Our role is a much more limited one of determining if the identification was so unreliable that the defendant's due process right to fair judicial procedures should have precluded an identification at trial." Napoli, 814 F.2d at 1156 (footnote omitted). As the United States Supreme Court observed in rejecting a challenge to an allegedly suggestive photographic identification procedure:
Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977) (citation omitted). Questions of this nature go to the witness' credibility. As we recognized in United States v. Ramirez, 796 F.2d 212, 214 (7th Cir.1986): "An appellate court will not weigh the evidence or assess the credibility of the witnesses." All we determine is that the trial judge did not abuse his discretion in determining that the recordings accurately portrayed conversations between the involved parties. The jury, then, ultimately determined the question of whether Vega's voice was actually on the tapes.
We wish to point out that Vega does not challenge the admission of any of the tapes on the basis that the quality of the tapes made it difficult to identify voices or that transcripts translating these tapes from Spanish to English were provided the jury. Upon review of the record, neither of these claims would support the exclusion of these tapes.
In United States v. Wilson, 578 F.2d 67, 69 (5th Cir.1978), the Fifth Circuit noted the standard to be applied in cases in which problems of tape unintelligibility exist:
(Citations omitted). Here also discretion was properly exercised in admitting the tapes because the tapes were generally audible, and, even if inaudible in parts, such inaudibility would go only to the weight, a jury question, rather than the admissibility,
The translation question was disposed of by Zambrana itself. In considering the accuracy of the translation transcripts used there we stated:
(Citations and footnotes omitted). Applying this standard the Zambrana court upheld the use of translated transcripts in a case in which testimony and cross-examination was permitted of all witnesses, including expert witnesses on language translation. Here the same opportunity existed, as cross-examination was freely permitted and expert witnesses on language translation were offered. Thus, the trial judge did not abuse his discretion in allowing the tapes to be admitted and the translated transcripts to be used as an aid to the jury.
Finally, we would note that it is often wise practice for the government to obtain voice exemplars as a means for ensuring a clear identification of a defendant. However, such voice exemplars may not always be readily obtained and are not the only permissible means of voice identification. In this case, for example, the government withdrew its request for voice exemplars because Judge Kanne, who had been presiding over the previous Zambrana cases, had denied the government's motions for voice exemplars in those cases. Thus, the government made a reasoned tactical decision that the trial court was unlikely to permit it to obtain Vega's voice exemplar. The government's method of identifying Vega's voice conformed to the requirements of the United States Constitution and the Federal Rules of Evidence and the identification must be upheld.
V. ADMISSION OF TAPES WHERE ALL THE VOICES ON THE TAPES WERE NOT IDENTIFIED
Vega claims that the court should not have admitted certain tapes. He contends that these tapes were not sufficiently authenticated under Rule 901(a) of the Federal Rules of Evidence because they involved a speaker or speakers that were not specifically identified.
In addressing this claim the trial judge was required to determine whether evidence was sufficient to support a finding that the matter in question was what the government claimed. Federal Rule of Evidence 901(a) provides: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims." In making this determination, the trial court was required to exercise its discretion in determining whether the government established by "clear and convincing evidence that the recordings are `true, accurate and authentic recording[s] of the conversation[s], at given time[s], between the parties involved.'" United States v. Keck, 773 F.2d 759, 766 (7th Cir.1985) (quoting United States v. Faurote, 749 F.2d 40, 43 (7th Cir.1984)). As we noted previously, this was a question on which a trial judge exercises "broad discretion" which will "ordinarily not be overturned on appeal absent `extraordinary circumstances.'" Faurote, 749 F.2d at 43.
Vega fails to make a compelling argument for exclusion of the tapes on this basis. As indicated previously, the authentication
Addressed in this fashion, it is clear that specific identification of a number of the individuals present on the tapes was unnecessary to the government's case. All of the calls in this case were made to the Zambrana residence, the headquarters of the drug conspiracy. The persons whose identity Vega questions were, in general, individuals or couriers who answered the telephone, paged an individual significant to the government's case or served as conduits for relayed messages to such persons. In this context, their role is similar to a hotel operator or bellhop, whose identity would be unnecessary to a case premised on a telephone conversation between a hotel guest and another individual in question.
The only individual other than Felipe Vega whose voice identification is questioned and whose identification could have been helpful to the government's case is Felipe Vega's wife. However, the trial judge initially and the jury, ultimately, could very easily have identified Mrs. Vega not only from her self-identification but also from circumstantial evidence. See United States v. Puerta Restrepo, 814 F.2d 1236, 1239 (7th Cir.1987) ("The authentication may be established by circumstantial evidence such as the similarity between what was discussed by the speakers and what each subsequently did"). In addition to Mrs. Vega's own self-identification, she was specifically recognized on a taped conversation by Jesus Zambrana as Vega's wife. In their conversation, when Zambrana was satisfied that she was Vega's wife, he gave her permission to "come by," a privilege which undoubtedly would have been denied in the drug culture if there was a question as to her identity. Further, Mrs. Vega referred to events (a trip to Puerto Rico and a wedding) which her husband had spoken about in his conversation with Jesus Zambrana a few days earlier. In addition, her conversation took place just days after a series of phone calls of inquiry from Felipe Vega to the Zambranas asking if there was "nothing yet" in a manner virtually identical to that which Mrs. Vega utilized in her telephone call. Based upon the totality of the circumstances, including Mrs. Vega's self-identification, Jesus Zambrana's obvious recognition of Mrs. Vega's voice, her specific reference to events discussed by her husband in a preceding phone call, as well as the timing of her call, an identification of Mrs. Vega's voice on the tape was clearly appropriate. Accordingly, we agree with the district court judge and conclude that his exercise of discretion was proper in his admission of the challenged tapes.
VI. SUFFICIENCY OF THE EVIDENCE
Vega claims that the government's evidence was insufficient to sustain his convictions.
In a combination §§ 841(a), 846 case "the government must prove that [Vega] knew of the conspiracy to [distribute drugs] and that he intended to join and associate himself with its criminal design and purpose."
Nesbitt, at 1509 (quoting United States v. Mayo, 721 F.2d 1084, 1087 (7th Cir.1983)).
Several specific legal propositions inherently flow from this general statement. As an initial matter, "we review all the evidence and all the reasonable inferences that can be drawn from the evidence in the light most favorable to the government." Nesbitt, 852 F.2d at 1509 (quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984)). "Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original) (footnote omitted). "This [standard] includes, in conspiracy cases, circumstantial as well as direct evidence." United States v. Williams, 858 F.2d 1218, 1221 (7th Cir.1988). We determine "whether, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis in original). As we emphasized in United States v. Giangrosso, 779 F.2d 376, 382 (7th Cir.1985): "[T]his court is not the trier of fact and we are required to uphold the jury's verdict where `any rational trier of fact' could have found the defendant guilty of the crime." Most importantly for this case: "Only when the record contains no evidence, regardless of how it is weighed, from which the [trier of fact] could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict." Nesbitt, 852 F.2d at 1509 (quoting United States v. Whaley, 830 F.2d 1469, 1472 (7th Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988) which quoted, in turn, United States v. Moore, 764 F.2d 476, 478 (7th Cir.1985)) (emphasis added).
Circumstantial evidence may appropriately be utilized to demonstrate both a conspiracy and the defendant's participation in the conspiracy. See Nesbitt, 852 F.2d at 1509. As we observed in Nesbitt, at 1510:
This observation reflects the same experience with drug conspiracies which led us to state: "[R]elying on common sense and taking judicial notice of the clandestine and life-threatening manner in which a drug conspiracy operates, it is ridiculous to presume that the government could obtain witnesses with firsthand knowledge of the group's activities." Zambrana, 841 F.2d at 1331-32. The important role that circumstantial evidence can play in a drug conspiracy case is perhaps best summarized by our recent statement that: "Not only is the use of circumstantial evidence permissible, but `circumstantial evidence "may be the sole support for a conviction."'"
In Nesbitt we went on to observe:
852 F.2d at 1511 (emphasis in original). As we further noted in Nesbitt: "If the government proves its case by circumstantial evidence, `it need not exclude every reasonable hypothesis of innocence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt.' ... The trier of fact is free to choose among various reasonable constructions of the evidence." Id. at 1510 (quoting United States v. Radtke, 799 F.2d 298, 302 (7th Cir.1986)). This statement is based upon our recognition that "[i]n every criminal trial, each party asks the trier of fact to believe its witnesses, to weigh its evidence more heavily than the opposition's evidence, and to draw certain inferences from the basic facts in evidence in order to accept its hypothesis regarding the events in dispute." United States v. Allen, 797 F.2d 1395, 1399 (7th Cir.1986) (quoting United States v. Moya, 721 F.2d 606 (7th Cir.1983), cert. denied, 465 U.S. 1037, 104 S.Ct. 1312, 79 L.Ed.2d 709 (1984)).
Review of a verdict based upon circumstantial evidence also requires special deference to a jury's common sense. As we stated in Nesbitt, 852 F.2d at 1511:
In addition, we defer to the jury's determination of witnesses' credibility. As we noted in United States v. Ramirez, 796 F.2d 212, 214 (7th Cir.1986): "An appellate court will not weigh the evidence or assess the credibility of the witnesses." Similarly, we have stated: "`It is well settled law that a court of appeals does not stand in judgment of the credibility of witnesses. Rather that question is left to the sound discretion of the trier of fact.'" United States v. Perry, 747 F.2d 1165, 1170 (7th Cir.1984) (quoting United States v. Roman, 728 F.2d 846, 856 (7th Cir.1984)). Finally, "the credibility of witnesses is peculiarly within the province of the jury and our review of credibility is prohibited absent extraordinary circumstances." United States v. Noble, 754 F.2d 1324, 1332 (7th Cir.1985).
Applying these standards to this case, there is little question that a rational jury could and did determine beyond a reasonable doubt that there existed a conspiracy to distribute cocaine and to possess cocaine with intent to distribute. Evidence was introduced of an April 1985 cocaine
The only question remaining is whether the evidence supports the verdict "that [Vega] ... joined and participated in the conspiratorial scheme." Nesbitt, 852 F.2d at 1509 (quoting United States v. Garcia, 562 F.2d 411, 414 (7th Cir.1977)). This court has noted that
United States v. Xheka, 704 F.2d 974, 988-89 (7th Cir.1983) (citations omitted).
The fact that tapes of the conversations implicating Vega in the drug conspiracy may, in certain parts, have been somewhat unclear, does not preclude a determination that he participated in the conspiracy. As we observed in United States v. Zanin, 831 F.2d 740, 744 (7th Cir.1987): "Conversations regarding drug transactions are rarely clear. A fact-finder must always draw inferences from veiled allusions and code words." In this case the jury was confronted with conversations which contained "code words" that, when considered in isolation, might seem unclear, veiled and almost nonsensical, but when analyzed properly, in the context of the totality of the evidence, can be clearly seen to be "code words" for drugs. See generally United States v. Abascal, 564 F.2d 821, 827 (2nd Cir.1977) ("The conversing conspirators frequently discuss non-narcotic-related matters at the beginning of conversations, and often resorted to jargon and code words, a frequent practice in narcotics dealings"); United States v. Chavez, 533 F.2d 491, 494 (9th Cir.1976) ("Jargon and code words are commonly used by those dealing in illicit drugs and were employed here") (citation omitted). It is true that, advisedly, no explicit mention was ever made of cocaine or other drugs in any of Vega's conversations with the Zambranas. However, a case was made, which was more than strong enough to convince the jury, the trier of fact, that Vega used terms like "chickens," "roosters" and "it" as code words for drugs. Not only are code words always used by drug conspirators when they realize, as they do in today's drug culture, that their telephone conversations are frequently intercepted, such terms were obviously used by the conspirators in this case. Tom Lovely, a convicted member of the Zambrana conspiracy, testified clearly and without qualification that he had been instructed to use code words for drugs when speaking on the telephone. He gave "chicken" as an example of a code word which could have
Had the jury believed Vega, they could have permissibly interpreted terms like "chickens," "roosters" and "it" in a literal fashion and determined that Vega actually was interested in the purchase and sale of chickens. However, the triers of fact, who had the opportunity to observe the demeanor and character of all of the witnesses, chose not to believe this explanation. As has already been noted, there was no evidence that either Vega or the Zambranas dealt in chicken sales. Further, it is clear that a possible innocent explanation for Vega's conversations does not affect the validity of the jury's contrary conclusion. As we noted in Zanin, 831 F.2d at 745:
Similarly, given the choice between the various inferences in this case the "jury exercising well-reasoned judgment could very well conclude that the inculpatory inferences outweigh the exculpatory inferences that could be drawn from the evidence beyond a reasonable doubt." Nesbitt, 852 F.2d at 1511. In such a situation, a reasonable jury did determine that Vega knew of the conspiracy to distribute cocaine and to possess cocaine with intent to distribute and joined and participated in these criminal purposes.
The reasonableness of the jury's verdict based upon these inferences is most clear when one considers the evidence before it:
The combination of these items of evidence clearly establishes that Vega was involved in the drug conspiracy. His calls to the Zambranas were frequent, laced with code words for drugs and made closely proximate to drug delivery times. On the basis of all the evidence, the jury appropriately found that Vega was a part of the Zambrana drug conspiracy.
The reasonableness of the jury's conclusion that Vega was involved in the drug conspiracy is confirmed by a previous case in which we found that repeated intercepted telephone conversations with drug conspirators in code language strongly supported a jury finding that a defendant was involved in a drug conspiracy. In United States v. Ramirez, 796 F.2d 212, 215 (7th Cir.1986), we stated:
(footnote omitted). Vega had the same type of frequent conversations with members of a drug conspiracy as did Ramirez. He telephoned the residence from which the conspiracy operated at least eight times during periods when the conspiracy was thriving. While speaking he frequently used code words for drugs. From the context of the recorded conversations, it seems clear that Vega knew at least one of the
The permissibility of the jury's verdict based upon these inferences is further supported by other drug conspiracy cases in which we have sustained decisions based upon similar inferences. For example, we have frequently upheld conspiracy determinations made by judges and juries which have relied upon inferences that "code words" or obscure language were meant to refer to drugs. In United States v. Mayo, 721 F.2d 1084, 1088-89 (7th Cir.1983), we sustained a conviction based, in part, upon evidence of the use of code words:
Likewise in United States v. Zambrana, 841 F.2d 1320, 1346 (7th Cir.1988), we sustained a trial judge's finding of the existence of the same drug conspiracy involved in this case. This finding was based in part on the use of "code words" for drugs. We stated: "Although the word `cocaine' was never referred to in any of the conversations, the trial judge could properly have accepted the government's contention that phrases such as `metallic paint' were used as code words to allude to the illegal drugs." Id. Probably the clearest support for the jury's inferences may be found in United States v. Giangrosso, 779 F.2d 376, 381-82 (7th Cir.1986). The jury in that case determined that an individual was involved in a drug conspiracy based upon the timing of telephone conversations and the use of evasive code language frequently utilized in the drug culture during these conversations, when these matters were considered together with other evidence presented. In sustaining one conviction we quoted terse language utilized in a telephone conversation and noted that: "The timing of the phone conversations and the discussion of the address immediately preceding the delivery of the cocaine to the Post Office is persuasive evidence linking Giangrosso to the cocaine delivery." Id. at 382. In sustaining the conviction on the other count, we again referred to the same combination of the correlation between drug delivery dates and telephone conversations using evasive language, in our consideration of the entire evidence. We observed: "[I]mmediately preceding the August 16, 1983, delivery of the Express Mail package to Chicago, a conversation took place between Giangrosso and Kucala couched in evasive language, obviously to avoid the mention of cocaine." Id. (emphasis added). Clearly, the jury in this case did properly render guilty verdicts based upon inferences concerning Vega's use of "code words" for drugs and the timing between Vega's conversations and possible drug deliveries.
A decision of another court of appeals very strongly supports the jury's verdict. In United States v. Perez, 824 F.2d 1567 (11th Cir.1987), the United States Court of Appeals for the Eleventh Circuit upheld a trial judge's evidentiary determination of an individual's involvement in a conspiracy under a factual situation almost identical to that involved here.
Id. at 1570-71. In describing Kurtz's contentions, the court stated:
Id. at 1571-72. The court concluded:
Id. at 1573. In this case the jury was confronted with a very similar factual situation. "Chickens" were used as code words for drugs in a case in which, in response to the briefs and arguments on this point on appeal, there was no evidence that those who bought and sold drugs also dealt in purchases or sales of chickens or roosters. The jury construed the facts in a manner virtually identical to the trial judge of the Eleventh Circuit upheld in Perez, and should be upheld here.
Vega has gone to great lengths to undermine the jury's verdict. He has even introduced factual material to this court, such as the Puerto Rican practices of purchasing live poultry for consumption, engaging in cock fighting and stuffing chickens, that was not introduced to the jury at trial in an attempt to have us overturn the jury's determination.
If Vega's theory were applied to the code language used in the above cases, a person who used the words "black cadillac" as code words for drugs in ordering narcotics from an individual or business which sold both cars and drugs could not be convicted of a drug violation. Such a wooden construction would ignore the basic precept that "[j]uries are allowed to draw upon their own experience in life as well as their common sense in reaching their verdict." Nesbitt, 852 F.2d at 1511. We decline to undermine the role of the jury in the manner Vega suggests.
Essentially Vega's argument in this case is directed toward his disagreement with the jury's verdict. However, we would remind Vega of our recent observation concerning our role in reviewing a jury's verdict on the basis of insufficiency of evidence: "All we can ask — under Jackson all we may ask — is whether, assuming the jury resolved all disputes in the state's favor and drew all inferences from that evidence, it would have been rational to convict. Not whether we would convict, but whether thoughtful people could convict." Branion v. Gramly, 855 F.2d 1256, 1266 (7th Cir.1988). In this case we cannot say that the jury acted irrationally in convicting Vega.
Vega finally contends that the district court improperly considered the new federal sentencing guidelines in sentencing him. Because Vega's sentencing took place prior to the effective date of the guidelines, Vega believes that the court's use of these guidelines violates the constitutional protection against ex post facto laws.
It is well settled that "a trial judge in the federal system generally has wide discretion in determining what sentence to impose." United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). In making this discretionary determination "a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." Id. It follows that "`[a] sentence which is within the limits established by statute under which it is imposed will not be vacated upon review unless the sentencing judge relied upon improper considerations or unreliable information in exercising his discretion or failed to exercise any discretion at all in imposing the sentence.'" United States v. Ford, 840 F.2d 460, 466 (7th Cir.1988) (quoting United States v. Harris, 761 F.2d 394, 402-03 (7th Cir.1985)).
If the district court had indicated that it was bound in any way by the federal sentencing guidelines, Vega's ex post facto law claim might have more substance. However, the court repeatedly indicated that it was merely influenced and not compelled by the guidelines. It was entirely proper for the district court's sentencing discretion to be guided in part by the sentencing parameters of the new guidelines. See United States v. Bullock, 857 F.2d 367, 372 (7th Cir.1988) (Sentencing was proper in a case in which the judge "stated that he consulted the Sentencing Commission's Preliminary Guidelines in imposing [the defendant's] sentence" but articulated several factors, in addition to the sentencing guidelines, in support of the sentencing determination). Cf. United States v. Hanahan, 798 F.2d 187, 191 (7th Cir.1986) (Sentencing was upheld in a case in which the
Even if we were to lend a sympathetic ear to one of Vega's arguments, we would remind all involved that the Supreme Court has "repeatedly stated, `the Constitution entitles a criminal defendant to a fair trial, not a perfect one.'" Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460 (1986) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986)). Since Vega received a fair trial in this case, the defendant's convictions and sentences are