United States v. Tapia-Ortiz

A federal jury convicted Juan Tapia-Ortiz and Ernesto Velez-Morales (defendants) of conspiring to distribute heroin and cocaine and possessing cocaine with intent to distribute. One informant, Hector Hernandez, bought heroin from Velez-Morales and Tapia-Ortiz 10 to 15 times in Brooklyn bars. Hernandez sometimes recorded the purchases in a composition book. Hernandez contacted Tapia-Ortiz through a beeper system involving code numbers. Another informant worked with undercover agents to sell about twenty kilograms of cocaine to Velez-Morales and Tapia-Ortiz. Velez-Morales was arrested after a high-speed chase and had the cocaine in his trunk and a beeper and business cards with contact numbers on his person. When police arrested Tapia-Ortiz, Tapia-Ortiz had a business card from one of the bars with Hernandez’s beeper number and code number written on it. At trial, Velez-Morales and Tapia-Ortiz primarily argued that, aside from the informants’ testimony, the government’s (plaintiff) evidence was consistent with innocent activity and that Velez-Morales did not know cocaine was in his trunk. Special Agent James Glauner of the Drug Enforcement Administration testified as an expert prosecution witness about the amount and purity of the cocaine possessed by Velez-Morales and Tapia-Ortiz, the wholesale and retail value of the cocaine, and drug traffickers’ common practices of using beepers with code numbers, cash, and nicknames or false names. Glauner also opined after reviewing Hernandez’s composition book that it was an accounting record of heroin transactions. During closing arguments, the prosecution briefly mentioned Glauner’s testimony while discussing Tapia-Ortiz’s nickname, the use of cash and beepers, and the amount of cocaine. Velez-Morales and Tapia-Ortiz appealed from their convictions, arguing in part that the prosecution had improperly used Glauner’s expert testimony about habits of drug traffickers to bolster its case.