In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-1606

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FELIPE RANGEL,

Defendant-Appellant.

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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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ARGUED OCTOBER 21, 2003—DECIDED NOVEMBER 25, 2003

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Before BAUER, DIANE P. WOOD, and EVANS, Circuit

Judges.

BAUER, 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 violation 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
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. Apparently 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 into the alley, Garcia walked back to Jorge’s car. DEA agents

moved in and arrested both Garcia and Rangel. Garcia
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 exchange 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 government turned over to Rangel a large amount of files pertaining 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 relevant 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-
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 defendant 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 records 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
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 summary 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 inaccurate. 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 reasonable 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 error 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.
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 cooperating 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 meaning 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) (emphasis 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 AFFIRM.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-25-03