APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. George A. O'Toole, U.S. District Judge]
The opinion of the court was delivered by: Torruella, Circuit Judge.
Torruella, Boudin,*fn1 and Thompson,
Following a four-day jury trial, Defendant-Appellant Hipolito Diaz-Arias was found guilty of conspiring to distribute cocaine, in violation of sections 841(a)(1) and 846 of Title 21 of the United States Code. He received a sentence of 120 months' imprisonment to be followed by a supervised release term of five years. Diaz-Arias now appeals his conviction and sentence, claiming that the district court erred in (1) permitting a non-expert witness to identify him as one of the speakers in several wiretap recordings, which the government introduced at trial to establish his involvement in the conspiracy; (2) allowing the jury to receive the transcripts of those recordings, which were labeled with his first name, "Hipolito," in order to identify him as one of the speakers; (3) allowing the government to introduce evidence about his co-defendants' unrelated drug activity; (4) declining to give the jury a specific instruction regarding any animosity they may have towards his race and ethnicity; (5) refusing to allow the jury to make a determination as to the specific drug quantity that could be attributed to him in the conspiracy; and (6) finding, by a preponderance of the evidence, that he was involved with five or more kilograms of cocaine. Finding no error in the district court's actions, we affirm its judgment in all respects.
A. The Indictment and Investigation
On July 27, 2005, Diaz-Arias and twelve other co-defendants were charged pursuant to a four-count, first superseding indictment issued by a grand jury in the District of Massachusetts. Diaz-Arias was only charged in Count One of the indictment, which alleged that he participated in a conspiracy to distribute at least five kilograms of cocaine, from January to October 2004, at various locales within the District of Massachusetts. Among the other defendants who were charged in Count One were Manuel Pinales, Rafael Heredia,*fn2 Richard Pena and Tajh M. White. The following facts are recounted in the light most favorable to the verdict. United States v. Poulin, 631 F.3d 17, 18 (1st Cir. 2011).
The charges brought against Diaz-Arias arose out of an investigation conducted by the Drug Enforcement Administration ("DEA") during the summer and fall of 2004. The focus of the investigation was an organization involved in the distribution of large quantities of cocaine in the Boston area. Manuel Pinales was identified as the leader of the organization, receiving cocaine in quantities of between 30 and 80 kilograms at a time from a source of supply in the Dominican Republic. Pinales and his cohorts then distributed these drugs to customers in the Boston, New Bedford and Lowell areas of Massachusetts, as well as to customers in Rhode Island. According to the results of the investigation, the core members of the Pinales organization were Heredia, Rodriguez and Pena.
The DEA investigation relied on court-authorized wiretaps on phones belonging to Pinales, Rodriguez, Pena and Heredia. The evidence submitted at trial against Diaz-Arias consisted primarily of recordings of conversations between Pinales, Pena, Heredia and a man referred to as "Hipolito," whom the government later identified as Diaz-Arias. The government also relied on several "drug ledgers" that were seized on October 8, 2004, pursuant to search warrants executed on 115 Navarre Street, where Heredia maintained an inventory of cocaine, and at another location known as the "Park Avenue Market," a grocery store run by Pinales. The government's position at trial was that the ledgers linked Diaz-Arias (referred to in the ledgers as "Hipolito" or "H.P.") with several kilograms of cocaine and thousands of dollars paid or owed to the Pinales organization. The wiretap recordings, which the government also used to prove that Diaz-Arias was a regular customer of the Pinales organization, are discussed in more detail below.
B. The Wiretapped Conversations
In July 2004, law enforcement agents began intercepting several telephone calls between Hipolito, Pinales, Pena and Heredia. These telephone calls depicted Hipolito attempting to broker several drug transactions with Pinales, with Hipolito asking Pinales to "give me some stuff" and later reminding Pinales "I owe you seven and a half." The intercepted conversations also revealed that the parties spoke in code, referring to kilograms of cocaine as "cars" and money as "tickets."
The low point for Hipolito came in the final days of September, when one of his planned cocaine transactions with Pinales went awry. It all began on September 28, when agents intercepted a telephone call where Hipolito told Pinales the following: "so, tomorrow, I am going to send the guy over there . . . to bring the tickets, the little tickets, yes, and so you give him that." Pinales responded, "[a]lright . . . [t]ell him to call me, so that he meets up with Viejo . . ."*fn3
The next day, at 11:47 a.m., Alex Hernandez, Hipolito's courier, called Pinales and said: "I am Hipolito's guy. I will, I am going to call you . . . in a couple of minutes, do you hear?" Pinales told Hernandez that this was fine, but gave him another phone number and asked him to "[c]all him there." An hour later, Hernandez placed a call to the phone number that Pinales gave him, which turned out to belong to Heredia. Hernandez again identified himself as "Hipolito's guy," and Heredia instructed him to "come by here, by near here, by Hyde Park," where the "little store"*fn4 was located. Hernandez told Heredia that he would stop by there to "pick up a pair of pants." Heredia then called Pinales to ask what he should give to Hernandez, to which Pinales responded "the usual" or "the complete one." Massachusetts State Trooper Jaime Cepero, who was eavesdropping on these calls while sitting in a wire room, alerted surveillance officers that there was a person heading to the Park Avenue Market to meet with Heredia, and that said person was going to be receiving a kilogram of cocaine.
At 1:00 p.m., several law enforcement officers, including DEA Task Force Agent Kevin McDonough, were conducting surveillance around the Park Avenue Market. Twenty minutes later, McDonough observed Heredia come out of the Park Avenue Market, wearing an unzipped jacket. As Heredia stood outside, a red Mustang pulled over next to him, and he began to talk with the driver. At that point, Heredia entered the vehicle through the passenger door, and the vehicle then proceeded down Hyde Park Avenue. It stopped just a few blocks away from 115 Navarre Street. Heredia emerged from the vehicle and entered a residence at that location. One or two minutes later, Heredia exited the residence, this time with his jacket zipped up and his hands inside his pockets. Agent McDonough perceived him to be holding something around his stomach area. Heredia then traveled to the Mustang, reconvened with the driver, and together they headed back to the area of the Park Avenue Market. Now back there, Heredia stepped out of the vehicle, and the vehicle continued on its way. The officers, including Agent McDonough, proceeded to follow it in their unmarked cars.
The red Mustang made its way through several streets in Boston, eventually embarking on Interstate 93, northbound. As Agent McDonough was shadowing the vehicle, Trooper Cepero, who was still in the wire room, contacted a nearby Massachusetts State Police barracks to arrange for a marked police cruiser to stop the Mustang. Trooper John Costa and Sergeant McCarthy, who were in the area driving separate police cruisers, spotted the Mustang as it was approaching the town of Wilmington, Massachusetts and ordered it to pull over onto the hard shoulder lane.*fn5 They identified the driver as Alex Hernandez and conducted a search of the vehicle using trained canines. The canines sniffed around the vehicle and alerted the officers to an area under the rear of the passenger seat; the officers inspected the floor around this area and found a possible hidden compartment. Hernandez was placed under arrest, and the Mustang was towed to the Andover barracks, where an inspection of the hidden compartment yielded a kilogram of cocaine.
As time passed, Hipolito grew anxious awaiting Hernandez's arrival. At 3:31 p.m., he called Pinales and asked "[a]t what time did you guys give the car to the guy?" Pinales replied, "[a] while ago . . . [i]s he not answering the phone?" "No, he is not answering now . . . [y]ou know how that is," said Hipolito. A worried Pinales then told Hipolito "[o]h, damn . . . [b]ad sign . . . [t]here are problems there, bro . . . I hope . . . God willing there are not . . ." The two agreed that they would wait and see what happened to Hernandez, with Hipolito promising to call Pinales as soon as he had news.
At 4:57 p.m., Hipolito finally called Pinales and told him: "[t]hey caught the man, dude." Dismayed, Pinales asked where, and Hipolito replied, "in Andover." Hipolito then told Pinales that he was going to call someone to figure out what was going on. Pinales and Hipolito spoke again on the phone at 7:39 p.m. Pinales warned Hipolito that "[i]t seems the friend is singing" to the police, and Hipolito advised Pinales to change his phone numbers. Almost two hours later, Hipolito called Pinales and told him that he had spoken with Hernandez's lawyer, who confirmed that the police had "caught him with that, yes." Several other phone conversations between Hipolito and Pinales were intercepted on the following day. Those recordings mostly featured discussions concerning the amount of Hernandez's bail.
During trial, Trooper Costa testified that on October 2, 2004, he received a phone call from a woman who identified herself as Jacqueline Fresa. He testified that Fresa expressed anger at the arrest of Hernandez, and that she complained about receiving threats, because "somebody had said that she was the informant that had told the police about Hernandez" and therefore was responsible for his arrest. Fresa denied being the informant, but admitted she knew Hernandez.
On the same day, Hipolito told Pinales over the phone that, "[t]he mother of my daughters . . . I got told that . . . she screwed me over." "But which one of them, who?" asked Pinales. "The one who was in jail, who came out," replied Hipolito. Hipolito told Pinales that, shortly before Hernandez was arrested, "the mother of [his] daughters" had called Hernandez to find out where he was. Hipolito then claimed that, as soon as Hernandez told her his location, "like five hundred showed up . . . she is a rat[,] man . . ." A few days later, on October 7, Hipolito called Pinales again and told him that the mother of his daughters had filed a restraining order against him.
During the trial, the district court admitted into evidence certified birth records from the city of Haverhill, Massachusetts, which showed that Diaz-Arias and Fresa were in fact the parents of two daughters. In addition, the district court admitted a certified record from the Haverhill District Court, which reflected that on October 4, 2004, Fresa had filed a restraining order against Diaz-Arias. Thus, the government claims that Fresa was the one Hipolito referred to as "the mother of [his] daughters," and that this was conclusive evidence proving that Hipolito was in fact Diaz-Arias.*fn6
Diaz-Arias was arrested on October 22, 2004, in Lowell, Massachusetts, while using the name of Carlos Santiago. He was also known to use other aliases, such as "Junio Humberto Santana Ortiz," "Raphael Ortiz Santino," "Guillermo Sanchez" and "Jose Nieves." Diaz-Arias was subsequently released on bail, but became a fugitive when he was indicted on the federal drug charge. On June 11, 2009, he was arrested in Lynn, Massachusetts. At that time, the officers found Diaz-Arias to be in possession of a Dominican passport in the name of Rafael Bienvenido Reynoso Hernandez and a Social Security Card in the name of Rafael Matos Bruno.
The jury found Diaz-Arias guilty of participating in the charged conspiracy. At sentencing, the district court found, by a preponderance of the evidence, that he was responsible for at least five kilograms of cocaine and therefore subject to a mandatory minimum sentence of ten years. 21 U.S.C. § 841(b)(1)(a)(ii) (2006). The court determined that the applicable guideline range for Diaz-Arias, taking into account an offense level of 32 and a criminal history category of III, was 151 to 188 months. The court nevertheless varied downward to reflect the culpability of Diaz-Arias in comparison to the other defendants in the case and sentenced Diaz-Arias to 120 months' imprisonment to be followed by five years of supervised release. This timely appeal followed.
A. The Voice Identification Testimony
Diaz-Arias' main argument in this appeal is that the district court abused its discretion when it allowed the government to introduce the lay opinion testimony of Trooper Cepero, who identified Diaz-Arias as the speaker in the intercepted telephone conversations. He contends that this testimony ran afoul of Federal Rule of Evidence 701 for lay opinion testimony because it: (1) was not helpful to the jury; (2) was not based on personal knowledge; (3) constituted expert testimony masked as lay opinion; and (4) was factually flawed. The following background on Trooper Cepero's testimony at trial will assist us in sorting through these arguments.
Trooper Cepero is a trooper with the Massachusetts State Police, where he has served for approximately 30 years, primarily in narcotics enforcement. At trial, he testified that he has fulfilled many roles there, including working undercover, serving search warrants, doing surveillance and serving as affiant on wiretaps. He stated that he has participated in hundreds of investigations, including over 30 that involved wiretaps. He was born in Puerto Rico, and Spanish is his native language; he continues to speak Spanish fluently and uses it in connection with his duties as a state trooper. For example, he has used his Spanish skills in several wiretap investigations involving Spanish speakers. He testified that he is familiar with individuals from the Dominican Republic (where Diaz-Arias is from) and their speaking intonations and accents.
Trooper Cepero testified that he was a co-case agent on the DEA investigation that led to Pinales' and Diaz-Arias' arrests. During most of the investigation, Cepero was stationed in a "wire room," overseeing and reviewing the audio of the intercepted telephone calls from the day before, as well as the transcripts and summaries of those calls. Whenever a phone call was made to or from an intercepted phone line, the call would be recorded via computer onto an optical disk that would contain the audio of the call, the data furnished by the phone company, and any additional comments provided by the officer monitoring the call. In preparation for trial, Trooper Cepero copied the recorded calls that involved Hipolito onto a separate optical disk and reviewed the transcripts and translations of those recorded conversations. The parties do not seem to dispute that the transcripts accurately reflected the words spoken among the speakers, which were translated from Spanish into English.
During trial, the government introduced into evidence Exhibits 26 and 27, which featured the recorded telephone calls that involved "Hipolito" and the transcripts of those calls. Trooper Cepero testified that he had reviewed all of those calls with their companion transcripts, and assured that the transcripts accurately identified the speakers and the words spoken. He testified that he spent approximately "five or six hours" listening to the calls in preparation for trial.
In order to adequately compare the voice of "Hipolito" in Exhibits 26 and 27 with the voice of Diaz-Arias, the prosecution introduced Exhibit 41, a compact disk that contained at least 16 recorded telephone calls, which the parties stipulated were "recent recordings of the defendant Hipolito Diaz-Arias' voice obtained by lawful means." Some of the recordings included conversations between Diaz-Arias and Fresa. Trooper Cepero testified that he spent about three hours listening to the calls in Exhibit 41 in their entirety and went over some of them a couple of times. In preparation for trial, he compared the voice of Diaz-Arias on Exhibit 41 with the voice of Hipolito on Exhibit 27. In making that comparison, Trooper Cepero testified that he took into account several factors, including: (1) things that were unique to the voice, such as greetings, laughter, tone, manner and speech pattern; (2) certain expressions that could not have been rehearsed; (3) certain expressions that were indicative of something the speaker did all the time; and (4) if the speaker used, or responded to, his name, and whether the speaker referenced to having spoken with someone else beforehand. Based on these factors, Cepero testified that, in his opinion, the voices belonged to ...