United States of America v. Felipe Rangel

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1606
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
F ELIPE R ANGEL ,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 02 CR 6—Allen Sharp, Judge.
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A RGUED O CTOBER 21, 2003—D ECIDED N OVEMBER 25, 2003
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Before B AUER , D IANE P. W OOD , and E VANS , Circuit
Judges.
B AUER , Circuit Judge. After a three-day jury trial,
defendant Felipe Rangel was found guilty of two counts of
selling, distributing, or dispensing powder cocaine in vio-
lation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He was
ultimately sentenced to sixty-three months of incarceration,
four years of supervised release, and a two hundred dollar
special assessment. Rangel appeals his conviction on
various evidentiary grounds. We affirm.
BACKGROUND
In August 2001, Jose Antonio “Tony” Garcia (Garcia)
approached Jorge, a confidential informant for the Drug

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2 No. 03-1606
Enforcement Administration (DEA), and offered to supply
him with cocaine. In keeping with the drug culture tradition
of “the first one’s always free,” Garcia gave Jorge a small
sample of powder cocaine on September 19, 2001. Appar-
ently satisfied, Jorge arranged three separate deals for one
ounce each in the month of November. Garcia engaged in
two more transactions with Jorge.
At about 12:40p.m. on December 12, 2001, a silver BMW,
driven by Garcia’s cousin, defendant Rangel, pulled up in
the alley behind Garcia’s house. Shortly thereafter, Garcia
got into Jorge’s car and delivered 1/4 kilogram of cocaine.
Garcia then got out of Jorge’s car, entered the silver BMW
and Garcia and Rangel drove to Pepe’s Restaurant. There
Garcia gave Rangel $6,300—his share of the money from
the deal.
Garcia and Rangel sat in the bar for a while drinking
beer. At one point, Rangel left the restaurant and spoke
on his cellular phone. At some point, local police arrived
and asked to see some identification. Rangel presented an
Illinois State Identification card bearing the name Felipe
Rangel. Rangel and Garcia left the restaurant.
Planning for the arrest of Garcia and Rangel, the DEA
had Jorge set up another deal for 1/4 kilogram of cocaine.
The deal was to take place at noon on January 4, 2002
in the same area as the December deal. At the appointed
time, Jorge pulled up in front of Garcia’s house and watched
him pacing around the front yard. Garcia could see Jorge’s
car but did not approach. Garcia used his father’s phone to
page Rangel. When he received no response, Garcia called
Rangel’s cellular phone.
At 12:18p.m. Rangel arrived in the silver BMW. Garcia
got into the car. Rangel drove the length of one house,
stopped, and let Garcia out of the car. As Rangel turned in-
to the alley, Garcia walked back to Jorge’s car. DEA agents
moved in and arrested both Garcia and Rangel. Garcia

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No. 03-1606 3
admitted that he had sold cocaine to Jorge six times and
claimed that he had obtained the cocaine from Rangel each
and every time. Both Garcia and Rangel were charged with
various drug offenses. Garcia agreed to cooperate in ex-
change for leniency.
Prior to trial, Rangel stated to the court that he intended
to subpoena various phone records for Garcia’s and Rangel’s
phones. The government stated that it would subpoena the
very same records and provide them to the defendant.
Rangel agreed to this and, on the morning of trial, the gov-
ernment turned over to Rangel a large amount of files per-
taining to calls made from Garcia’s home phone, Garcia’s
father’s cellular phone, and Rangel’s cellular phone.
During the trial, Garcia testified that he began selling
drugs for Rangel in the summer of 2001. In an attempt to
corroborate this testimony, the government sought to enter
into evidence a “summary chart” which summarized the
number of calls between Rangel and Garcia during the rel-
evant time frame. The defense objected to the chart for lack
of foundation and lack of completeness. The objection was
sustained. At the close of evidence on the first day of trial,
the government again moved to have the summary chart
introduced into evidence. The judge deferred a decision on
the matter until the following morning. That morning, the
defendant again objected to the claimed expert testimony
regarding the summary charts for lack of foundation. He
requested that the testimony be stricken. The objection was
overruled. Later, when the government requested that the
summary chart be received into evidence, the court allowed
it. The court refused to allow Rangel to make a record of his
objection at that time.
At the jury conference, Rangel objected to an instruction
which told the jurors to assume that the summary chart
“truly and accurately” reflected the original records. His
basis for the objection was that the chart was not a sum-

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4 No. 03-1606
mary of all of the data but rather, a partial summary. This
objection was also overruled.
The jury deliberated for five hours and found the defen-
dant guilty of selling, distributing, or dispensing powder
cocaine on the dates of December 12, 2001, and January 4,
2002. He was found not guilty on the other four counts
dealing with the drug transactions on September 19,
November 1, November 15, and November 20, 2001.
DISCUSSION
A district court’s evidentiary rulings are reviewed for an
abuse of discretion. United States v. Brown, 289 F.3d 989,
994 (7th Cir. 2002). When a party fails to properly object to
the admission of evidence at trial, we review for plain error.
United States v. Curtis, 280 F.3d 798, 801 (7th Cir. 2002).
Plain error will be found only when the exclusion of the
erroneously admitted evidence probably would have
resulted in an acquittal. United States v. Krankel, 164 F.3d
1046, 1052 (7th Cir. 1998).
A. Summary Chart
Rangel’s first argument is that his conviction should
be reversed because the government failed to abide by
Federal Rule of Evidence 1006. That section requires a
party seeking to introduce a summary of voluminous rec-
ords to provide copies of the those records to the opposing
party at a reasonable time and place. A “reasonable time
and place” has been understood to be such that the opposing
party has adequate time to examine the records to check
the accuracy of the summary. Canada Dry Corp. v. Nehi
Beverage Co., 723 F.2d 512, 523 (7th Cir. 1983). Rangel’s
argument is unpersuasive.
Rangel objected to the introduction of the summary chart
in question a number of times. Never once during trial did

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No. 03-1606 5
he object on the grounds that he had not had adequate time
to examine the original records. When a defendant fails to
state the grounds for an objection at trial, the issue is
waived absent a showing of plain error. Curtis, 280 F.3d at
801 (citing Krankel, 164 F.3d at 1052).
The record reveals no plain error in admitting the sum-
mary charts. First, the purpose behind Federal Rule of
Evidence 1006 is to allow the opposing party adequate
opportunity to check the accuracy of the summary against
the original records. Canada Dry Corp.,723 F.2d at 523.
Rangel does not claim that the summary charts were in-
accurate. Second, it appears the jury rejected the inference
to be drawn from the phone records. The records were
offered to show a sharp increase in calling activity between
Garcia and Rangel during the time period when Garcia
claimed he was selling cocaine obtained from Rangel. The
government argued that the pattern of calls led to the rea-
sonable inference that Garcia was telling the truth about
Rangel being the supplier of the cocaine in question. The
jury acquitted Rangel on the first four counts and found
him guilty on the final two counts. As the defendant was
physically present at the scene of the drug deals underlying
those two counts for which he was convicted, and not
present at the four for which he was acquitted, it appears
the jury put little stock, if any, in the phone records. Since
it is unlikely that exclusion of the summary charts would
have changed the outcome of the case, we find no plain er-
ror in the admission of the evidence.
B. Expert Testimony Relating to “Negotiation Calls”
Rangel argues that a DEA agent witness invaded the
province of the jury and offered improper expert testimony
by testifying that certain phone calls were for the purposes
of negotiation. The transcript of the testimony belies this
argument.

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6 No. 03-1606
Rangel says the DEA agent witness
offered an opinion as to the content and purpose of
the calls represented on the chart, an opinion not
founded on the facts represented by the exhibit itself
but, apparently, on either an “expert” opinion held by
the agent himself or his reliance upon the word of co-
operating witness Garcia, the only witness to claim
actual knowledge of the content and purpose of the
communications.
(Appellant’s Br. at 16.) The essence of the argument is that
no one, except the parties to the call, actually know what
was said between Rangel and Garcia during their telephone
conversations. If this is so, Rangel argues that the agent
witness should not be allowed to speculate as to the mean-
ing or content of the call. The agent did no such thing. A
single sentence from the transcript of the agent’s testimony
shows this. “[A]ll of the other transactions were preceded by
a series of negotiations, phone calls between the confidential
source, Jorge, and Mr. Garcia.” (Tr. Vol. II at 160) (empha-
sis added). The testimony does not delve into the content of
phone calls between Garcia and Rangel. The negotiation
phone calls between Garcia and Jorge were made pursuant
to the requests of the testifying agent. Furthermore, these
calls were recorded and their transcripts were admitted into
evidence. The testimony was not improper.
For the reasons stated above, we A FFIRM .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-25-03

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