175 F.3d 742 (9th Cir. 1999), 98-10081, United States v. Rrapi

Docket Nº:98-10081, 98-10138.
Citation:175 F.3d 742
Party Name:Journal D.A.R. 4188 UNITED STATES of America, Plaintiff-Appellee, v. Aleko RRAPI, Defendant-Appellant.
Case Date:May 04, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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175 F.3d 742 (9th Cir. 1999)

Journal D.A.R. 4188

UNITED STATES of America, Plaintiff-Appellee,

v.

Aleko RRAPI, Defendant-Appellant.

Nos. 98-10081, 98-10138.

United States Court of Appeals, Ninth Circuit

May 4, 1999

Argued and Submitted Nov. 3, 1998.

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[Copyrighted Material Omitted]

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John C. Lambrose, Assistant Federal Public Defender (argued); Janet A. Bessemer, Assistant Federal Public Defender (on the briefs), Las Vegas, Nevada, for defendant-appellant.

Mathew A. Parrella, Assistant United States Attorney (argued); Camille W. Damm, Assistant United States Attorney (on the briefs), San Diego, California, for plaintiff-appellee.

Appeals from the United States District Court for the District of Nevada; Lloyd D. George, District Judge, Presiding. D.C. No. CR-S-97-0041-LDG.

Before: SCHROEDER and THOMAS, Circuit Judges, and KING, 1 District Judge.

Opinion by Judge KING; Partial Concurrence and Partial Dissent by Judge THOMAS.

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KING, District Judge:

INTRODUCTION

In these consolidated appeals, Defendant Aleko Rrapi ("Defendant" or "Rrapi") appeals (1) a judgment of conviction of one count of bank robbery in violation of 18 U.S.C. § 2113(a) and 2 (aiding and abetting); and (2) a finding of criminal contempt in violation of 18 U.S.C. § 401(1). We have jurisdiction under 28 U.S.C. § 1291, and affirm.

BACKGROUND

On March 5, 1997, Defendant Aleko Rrapi, along with co-defendants Thomas Paskali and Petrit Dindi, were charged in a one-count superseding indictment for Bank Robbery based upon an attempted entry into a U.S. Bank automated teller machine ("ATM") during a break-in of an Albertson's supermarket in Las Vegas, Nevada. Paskali and Dindi pled guilty; Dindi testified as a cooperating witness against Rrapi.

The FBI had been investigating all three Defendants for several months. The FBI surveillance operation included the use of electronic "bugs" of Defendants' apartment. Agents had stationed themselves in the apartment directly below the Defendants' apartment. The Defendants were suspected of several break-ins of ATM's throughout Las Vegas and California, as well as robberies of other stores and restaurants. According to the FBI, the Defendants' modus operandi included a practice of "normally [making] a hole in the ceiling and the roof of banks and other grocery stores" for entry.

On the evening of December 25, 1996, a shift of FBI agents began their surveillance of Defendants' apartment. Rrapi's orange BMW, as well as Paskali's vehicle, were missing. Thus, the agents began searching several areas in Las Vegas that the Defendants were known to frequent.

Defendants were at a local casino; Rrapi drove Dindi in his orange BMW and Paskali drove in a different car. Dindi testified that after they finished drinking and gambling, they left the casino looking for a store to break into for money. They targeted the Albertson's grocery store, which contained an ATM machine. Rrapi parked his car at a video store next door, and left Dindi to watch for police. Rrapi and Paskali went into the Albertson's. Rrapi returned about an hour later, empty-handed.

Albertson's grocery stockers discovered the break-in as it was occurring between 10:00 and 11:00 p.m. The intruders had escaped through the back door. The stockers found a damaged ATM machine. Someone had pried the front and top covers of the ATM off; had cut the hinges; and had inserted a screwdriver in the machine. A Marlboro cigarette butt and shoe print were found, as well as a pillowcase containing a nylon rope. Intruders had pounded a hole through the store's roof, presumably the point of entry.

The FBI agents who had been looking for Defendants responded to the Albertson's scene, after having been notified by metropolitan police. One agent went back to the Defendants' apartment. He then saw Rrapi pull up in his BMW. Based upon conversations inside the apartment, agents searched the area around Albertson's for Paskali's car. They found his car, which had a pack of Marlboro cigarettes in the front seat. Paskali had apparently walked back to the apartment, after escaping the Albertson's. Early the next morning, Dindi and Rrapi went back to pick-up Paskali's car.

On February 17, 1997, the FBI searched Defendants' apartment. The FBI found burglary tools, a power grinder of a type able to cut ATM hinges, wirecutters, a saw blade, a shoe matching the Albertson's print, and a pillowcase matching the Albertson's pillowcase. Rrapi's BMW contained screwdrivers, a crowbar, a grinding wheel, wire cutters, and "a splitting wedger."

In January of 1998, Rrapi was tried for bank robbery under 18 U.S.C. §§ 2113(a)

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and 2. Much is made in this appeal of the transcribing and translating (Rrapi, Paskali and Dindi are Albanian) of the surveillance tapes, which were apparently of poor quality. Prior to trial, the court conducted an "audibility hearing" regarding three of the tapes. After a four-day trial, Rrapi was convicted. He was sentenced to 27 months in custody, restitution, and three years supervised release.

As the jury was announcing its verdict, Rrapi swore directly at the jurors and possibly at the prosecutor. After one outburst, the Marshal appears to have handcuffed, or prepared to handcuff, Rrapi (he told Rrapi "put your hands behind your back" after an incident). The government asked the court to find Rrapi in contempt. The trial court, after a hearing that afternoon, found him in criminal contempt under 18 U.S.C. § 401(1), entered a written order, and sentenced him to serve the next 60 days in custody without being credited with time served.

Rrapi appeals both his bank robbery conviction and the criminal contempt finding and sentence.

DISCUSSION

1. The trial court did not abuse its discretion in admitting the tape excerpts and translated transcript.

Rrapi asserts that the trial court erred in allowing the jury (1) to hear the tape (primarily in Albanian) of the FBI's surveillance from December 25, 1996, and (2) to read the FBI's corresponding translation. He contends that the tape was not audible, and that the court should have allowed his expert witness translator (Ms. Romano) to listen to the tape on the court's equipment in order to challenge the accuracy of the FBI translation. He claims the court should not have admitted the translated transcript into evidence.

"Where there is no dispute as to accuracy, we review for abuse of discretion the district court's decision to allow the use of wiretap transcripts during trial[.]" United States v. Pena-Espinoza, 47 F.3d 356, 359 (9th Cir.1995) (citing United States v. Taghipour, 964 F.2d 908, 910 (9th Cir.1992)). 2 "The use of transcripts as an aid in listening to tape recordings is reviewed for abuse of discretion." United States v. Armijo, 5 F.3d 1229, 1234 (9th Cir.1993) (citing Taghipour ).

"A recorded conversation is generally admissible unless the unintelligible portions are so substantial that the recording as a whole is untrustworthy" United States v. Tisor, 96 F.3d 370, 376 (9th Cir.1996) (quoting United States v. Lane, 514 F.2d 22, 27 (9th Cir.1975)).

Generally, the Court reviews the following steps taken to ensure the accuracy of the transcripts: (1) whether the court reviewed the transcripts for accuracy, (2) whether defense counsel was allowed to highlight alleged inaccuracies and to introduce alternative versions, (3) whether the jury was instructed that the tape, rather than the transcript, was evidence, and (4) whether the jury was allowed to compare the transcript to the tape and hear counsel's arguments as to the meaning of the conversations. See Armijo, 5 F.3d at 1234.

The third factor (instruction that the tape, not the transcript, is evidence) does not apply with foreign language tapes. See United States v. Fuentes-Montijo, 68 F.3d 352, 355 (9th Cir.1995) ("when faced with a taped conversation in a language other than English and a disputed English translation transcript, the usual admonition that the tape is the evidence and the transcript only a guide is not only nonsensical, it has the potential for harm").

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Defendant makes much of the fact that the court refused to allow his expert additional time (after the court ruled on the admissibility of the tape and transcript) to listen to the excerpt on the court or FBI's tape player. He claims he was unable to challenge the accuracy of the transcript. What is important, however, is that ultimately only a short excerpt was admitted. The court substantially granted Defendant's request, based upon audibility, to exclude most of the transcripts. The Defendant's expert had also translated the admitted portion, and her translation was substantially similar to the government's transcript. The court allowed Defendant's expert to testify as to audibility before the jury (although she apparently did not testify). Defendant cross-examined the FBI translator for bias regarding whether he could understand the tape, and whether he could actually decipher Rrapi's voice in it. He also argued to the jury that the tapes were not audible, and that Rrapi's voice was not on it. 3 Given these circumstances, we cannot say that the trial court abused its discretion in admitting the tape and transcript.

As indicated, the government sought to introduce excerpts of three tapes and the corresponding translations. The court admitted only one of the three (a four or five minute portion from December 25, 1996). The entire tape (a 90 minute cassette), a copy with only the excerpt, and a transcript of the translation were given to the jury. The tape was played for the jurors, who followed along using the transcript.

The FBI translator (Mr. Neza) who was...

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