Criminal Justice Section
Criminal Justice Magazine
Volume 18 Number 4
Stephen A. Saltzburg
Stephen A. Saltzburg is the Howrey Professor of Trial Advocacy, Litigation, and Professional Responsibility at George Washington University School of Law in Washington, D.C. He is also a contributing editor to Criminal Justice magazine and a Section delegate to the ABA House of Delegates.
Interpreting Code: Part I
Editor’s Note: "Interpreting Code: Part II" will appear in the Winter 2004 issue of Criminal Justice magazine.
It is common in many criminal cases, particularly those involving drug conspiracies, for government witnesses to qualify as experts or lay witnesses with first-hand knowledge of drug transactions in order to testify about the meaning and use of code words by conspirators. Trial judges and appellate courts have ruled in many cases that code words may be outside the knowledge of most jurors, and testimony by government witnesses based on general experience or first-hand knowledge of particular transactions may be helpful to jurors. For example, in United States v. Garcia, 291 F.3d 127, 139 (2d Cir. 2002), the court of appeals stated the following:
We long have recognized that drug dealers seldom negotiate the terms of their transactions with the same clarity as businesspersons engaged in legitimate transactions. "Drug dealers rarely speak openly about their trade; instead, they often engage in a so-called ‘narcotics code.’" United States v. Cancelmo, 64 F.3d 804, 808 (2d Cir. 1995) (quoting United States v. Sisca, 503 F.2d 1337, 1343 (2d Cir. 1974)); United States v. Velasquez, 271 F.3d 364, 372 (2d Cir. 2001), cert. denied, 152 L. Ed. 2d 373, ___U.S. ___, 122 S. Ct. 1382 (2002). Given the attempts of drug dealers to disguise the content of their discussions as legitimate subject matters, courts may allow witnesses to "decipher" the codes drug dealers use and testify to the true meaning of the conversations.
The facts of Garcia
The law was clear, even before the December 2000 amendments to Federal Rules of Evidence (FRE) 701 and 702 that there are limits to the admissibility of code interpretation testimony in drug cases. Indeed, Garcia illustrates this quite well. Here the court found that the trial judge improperly admitted the interpretative testimony.
Garcia involved a drug sale. A cooperating informant, Toro Balcarcel, met with Garcia and another man, Ceron, at Garcia’s house. According to Balcarcel, Garcia had only three of the 10 kilograms of cocaine that Balcarcel had requested, so the men agreed that Garcia would provide the drugs in separate deliveries and that Balcarcel would pay Garcia when the deal was complete. The detectives monitoring Garcia’s house did not observe a transfer, but Balcarcel met the police after leaving Garcia’s house and produced from his van a bag containing three kilograms of cocaine. Relying on this evidence, the police arrested Garcia and Ceron, searched the house pursuant to a warrant, and found no cocaine, drug paraphernalia, or substantial sum of money.
The government relied heavily at trial on a tape-recorded telephone conversation between Balcarcel and Garcia that occurred two days before the alleged sale. Balcarcel telephoned Ceron, Ceron handed the phone to Garcia, and Balcarcel and Garcia had the following conversation that was recorded. The government relied upon portions of the conversation, samples of which follow:
Balcarcel: Listen, man, I can’t be there on time because it’s that I’m over on Roosevelt with my family and I haven’t been able to [sic] because my insurance just expired and . . . this is why I called you early, so we could meet. But listen, I just spoke to my friend and it’s all right; he’ll be here early on Wednesday. Ten o’clock on the dot. You know?
Balcarcel: The one from the company.
Garcia: No, no, because . . . this is why I wanted to talk about this over there because . . . you know that when you get in touch with these people then they [unintelligible] working with our stuff.
* * *
Balcarcel: But anyway, I wanted to tell you that it’s for sure, 100 percent.
* * *
Garcia: Tomorrow my doctor will [unintelligible] of everything because it’s all up to date.
The meaning of the words
The defense claimed that the conversation was about a possible asbestos-related job, while Balcarcel and the government claimed that it was a coded conversation about drugs. Balcarcel explained the code words:
"My friend" meant the customer; "three licenses" meant three kilograms of cocaine; "group" meant 10 kilograms of cocaine; "supervisor," "foreman," and "eight more people" together meant 10 kilograms of cocaine; "matching dates" meant good quality; "high end" meant drug supplier; "the paperwork is complete" meant the 10 kilograms were ready and would be at the deal; reference to Garcia’s activities at the "DEP" meant Garcia had confirmed that the 10 kilograms were ready; references to being "on standby" and "contracts" meant they could conduct another drug deal in the future; and "doctor" meant the drug deal was ready.
(291 F.3d 132–34.)
Balcarcel was a drug dealer turned informant. His ability to interpret the code words depended upon two things: (1) his intent in using the words he used, and (2) Garcia’s understanding of those words and intent to use the words he used. There is no doubt that Balcarcel was able to testify as to his own intent and his understanding of the words during the conversation. He did not need to be an expert, since any layperson can testify to what he or she intended in making a statement. Such testimony may be true or false, but a witness certainly has the best possible knowledge of what his or own statement was intended to mean. The problem for the government was that it simply assumed that Balcarcel could testify as to Garcia’s understanding and intent without laying a foundation.
The issue on appeal was whether the testimony was properly admitted, and the court of appeals held that it was not. There was an absence of evidence as to how Garcia could have known the code. Balcarcel deliberately used terms from the asbestos industry, an industry in which both he and Garcia worked. Not only did he fail to offer an explanation for how Garcia could know that they were speaking in code, but also he failed completely to demonstrate that the code was common or known to others or that there had ever been any plan or agreement to use code. Without some foundation, the court of appeals concluded that, even if Balcarcel were telling the truth about his own understanding and intent, he provided no basis for a jury to find that Garcia shared the same understanding and intent. In short, there was no evidence to support a finding that Garcia used the words for something other than their literal meaning. The court of appeals found that the error in admitting the interpretation by Balcarcel and a related error, not discussed here, in admitting evidence under FRE 404(b) required reversal.
Garcia is a strong reminder that witnesses may not interpret conversations, even ones in which they were participants, unless a foundation is laid to demonstrate that other participants understood that code words were being used. The foundation need not be difficult to create. It would be sufficient that the interpreting witness testified that there had been an agreement among all participants to use code. A weaker foundation would be testimony by the witness that the code words were widely used by those in the drug trade. This foundation is weaker unless there is evidence that someone like Garcia was previously involved in the trade and therefore would know the code. Standing alone, evidence that drug dealers use code is not much of a foundation to support an inference that someone not previously involved with drug dealers would know the code.
At the time of Garcia’s trial, FRE 701 had not been amended to provide that lay testimony may only be admitted if it is "not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Thus, the court of appeals noted that agent testimony as to the meaning of code words had been admitted as both lay and expert testimony. Today, agents testifying on the basis of general knowledge probably must qualify as experts, while undercover agents investigating particular cases may be permitted to testify as lay witnesses or as both lay and expert witnesses.
Garcia should remind prosecutors and defense counsel of certain basic propositions regarding witnesses offered to interpret code words in drug cases:
1. Lay witnesses—for example, participants in drug activities—may be permitted to testify as to their understanding of the meaning of code words, but for their testimony to be relevant they must lay a foundation to demonstrate that a particular defendant had knowledge of the code words.
2. Expert witnesses also may be permitted to testify to the meaning of code words. Their testimony may be based upon their general experience in drug investigations. Although Garcia did not discuss the point, it may be necessary for someone to lay a foundation that any defendant involved in a conversation had knowledge of the code. A showing of knowledge may be particularly important where a defendant claims that there is an innocent interpretation of certain words, which was the case in Garcia.