## Facts

- A federal jury convicted Juan Tapia-Ortiz and Ernesto Velez-Morales of (1) conspiracy to distribute heroin and cocaine (21 U.S.C. § 846) and (2) possession of cocaine with intent to distribute (21 U.S.C. § 841(a)(1)).
- Government informant Hector Hernandez testified that in 1990–1991 he bought heroin from Tapia-Ortiz and Velez-Morales 10 to 15 times at two Brooklyn bars, one owned by Tapia-Ortiz.
- Hernandez said he contacted Tapia-Ortiz (known to him as “Flaco”) through a beeper system in which Hernandez entered an agreed-upon code number after his phone number so Tapia-Ortiz would know who was calling.
- Beginning in March 1991, Hernandez sometimes recorded his drug purchases in a composition book, which later became evidence at trial.
- A second informant, working with undercover agents, arranged a transaction for approximately twenty kilograms of cocaine with Tapia-Ortiz and Velez-Morales.
- After a high-speed chase, agents arrested Velez-Morales and found the cocaine in the trunk of his car; he also had a beeper and business cards with contact numbers.
- When police arrested Tapia-Ortiz, he possessed a business card from one of the bars with Hernandez’s beeper number and code number written on it.
- At trial, the defendants argued that apart from informant testimony, the remaining evidence was consistent with innocent conduct, and that Velez-Morales did not know cocaine was in his trunk.
- The government called DEA Special Agent James Glauner to give testimony based on specialized knowledge about drug trafficking, including the amount and purity of the seized cocaine, its wholesale and retail value, and common trafficker practices (use of beepers with code numbers, cash, and nicknames/false names).
- After reviewing Hernandez’s composition book, Glauner testified that it appeared to be an accounting record of heroin transactions.
- In summation, the prosecutor briefly referred to Glauner’s testimony when discussing Tapia-Ortiz’s nickname, use of cash and beepers, and the significance of the cocaine quantity.
- On appeal, both defendants challenged their convictions, arguing (among other points) that the government improperly used Glauner’s testimony about trafficker practices to bolster the informants and invite guilt by “profile.” Tapia-Ortiz also challenged his sentence, which reflected an added heroin quantity attributed as uncharged but related conduct.

## Issues

1. Whether the district court erred by admitting (and permitting the government to rely on) testimony from a DEA agent describing common narcotics-trafficking practices and characterizing the informant’s composition book as drug-transaction records, thereby improperly bolstering the government’s case.
2. Whether Tapia-Ortiz’s Guidelines sentence was improperly based on an additional heroin quantity attributed as relevant conduct without adequate support and findings.

## Decision

- The Second Circuit affirmed the convictions of Tapia-Ortiz and Velez-Morales.
- The court held the challenged testimony was properly admitted to help the jury understand evidence such as coded beeper contacts, nicknames, drug value, and records of transactions, and it did not amount to an improper opinion that defendants were guilty.
- The court vacated Tapia-Ortiz’s sentence and remanded for further sentencing proceedings.
- The court concluded the record and findings were insufficient to support the additional drug-quantity attribution used to calculate Tapia-Ortiz’s offense level.

## Legal Principles

- Testimony based on specialized knowledge may be admitted under Federal Rule of Evidence 702 to explain drug-trafficking methods and the significance of evidence (such as beeper codes, drug quantities, and drug value) that jurors may not readily understand from ordinary experience.
- An agent may testify that a notebook or ledger appears to record drug transactions when that conclusion is based on experience with drug-record formats and the contents of the writing, so long as the testimony does not simply tell the jury that a witness is truthful or that the defendant is guilty.
- The risk of unfair prejudice rises when the government uses “trafficker habits” testimony as a substitute for proof or as a broad profile; limited, case-focused use as background and interpretation is generally within the trial court’s discretion.
- Prosecutorial reference in closing argument to properly admitted testimony is generally permissible where the references are brief and tied to evidence in the record rather than framed as a direct assertion of guilt by authority.
- At sentencing, the Guidelines permit inclusion of uncharged conduct as “relevant conduct” if it is part of the same course of conduct or common scheme or plan, but the drug-quantity determination must be supported by reliable evidence and adequate findings; when those are lacking, remand is appropriate.

## Conclusion

The Second Circuit held that the district court did not abuse its discretion in admitting DEA testimony explaining common drug-trafficking practices and interpreting the informant’s composition book as heroin-transaction records, and it therefore affirmed both defendants’ convictions. However, because the sentencing record did not adequately support the added heroin quantity attributed to Tapia-Ortiz as relevant conduct, the court vacated his sentence and remanded for further proceedings.


United States v. Tapia-Ortiz, 23 F.3d 738 (1994)