U.S. v. Morales-Madera

Decision Date20 November 2003
Docket NumberNo. 02-1220.,02-1220.
Citation352 F.3d 1
PartiesUNITED STATES of America, Appellee, v. Gabriel MORALES-MADERA, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Johnny Rivera-Gonzalez, for appellant.

Thomas F. Klumper, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Sonia I. Torres, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Circuit Judge, LIPEZ, Circuit Judge, OBERDORFER, Senior District Judge*.

LYNCH, Circuit Judge.

In our increasingly pluralistic and multilingual society, the issues raised by this case will grow in importance. This case arises in the federal courts of Puerto Rico. These courts often face the difficult task of admitting evidence that originates in the Spanish language while seeking to comply with the Jones Act, 48 U.S.C. § 864, which requires that court proceedings be conducted in English. In this case, the evidence involved fifty-two recordings of wiretapped conversations in Spanish among members of a drug importation and distribution conspiracy.

The defendant, Gabriel Morales-Madera, was convicted of participating in a massive drug conspiracy. He was sentenced to 250 months imprisonment and six years of supervised release. On appeal, the primary issue raised is that English-language transcripts of the wiretapped conversations were neither marked as exhibits nor admitted in evidence, and that the court reporter did not transcribe and translate the wiretapped conversations into the record as the tapes were being played.

Morales-Madera urges this court to adopt a bright-line rule that where English transcripts of taped conversations conducted in Spanish are not admitted in evidence, there is such harm to the national interest in maintaining English as the language of the courts that any ensuing conviction should be overturned. He reads our opinion in United States v. Rivera-Rosario, 300 F.3d 1 (1st Cir.2002), to require that result. We reject both his reading of Rivera-Rosario and his proposed bright-line rule. Instead, we evaluate a number of factors, taking into account the nature of the problem at trial, the objections made by the defendant below, the use of Fed.R.App.P. 10(e) to supplement the record for purposes of appellate review, and any prejudice to the defendant. Morales-Madera also argues that there was insufficient evidence to convict and that there were sentencing errors. We reject his challenges to his conviction and affirm.

I.

Because the jury returned a guilty verdict as to Morales-Madera, we state the facts in the light most favorable to his conviction.

On December 10, 1997, a federal grand jury returned a four-count indictment against twenty-four defendants allegedly involved in a drug trafficking organization. Count One charged that from about December 1994 until the time of the indictment, Morales-Madera and twenty-two other individuals conspired to distribute and to possess with the intent to distribute more than five kilograms of cocaine, one kilogram of heroin, and multi-pound quantities of marijuana, in violation of 21 U.S.C. § 846.

Morales-Madera was tried alone in a four-day jury trial that started on August 6, 2001. At trial, FBI Special Agent Carlos Cases testified that Federico Naranjo-Rosa and his nephew Carlos Gutierrez-Naranjo operated a drug-trafficking organization. According to Agent Cases's testimony, the organization imported cocaine and heroin from the Dominican Republic and Columbia and distributed marijuana in Puerto Rico. Agent Cases testified that Morales-Madera was Naranjo-Rosa's right-hand man and had the task of collecting drug debts and helping Naranjo-Rosa obtain drugs from the Dominican Republic.

The government played to the jury recordings of fifty-two tapes of telephone conversations between the conspirators that were intercepted and recorded by the FBI pursuant to a wiretap order. These wiretapped conversations took place in Spanish. The court reporter did not transcribe or translate the contents of the tapes in the record. Instead, the government provided Spanish transcripts of the tapes and English translations of those transcripts to the district court, the jury, and defense counsel at trial.1 The jury used the transcripts as aids while the wiretap tapes were played, and returned the transcripts to the government afterwards. The court instructed the jury to "consider in [their] deliberations what [they] heard on tape, not what the transcript says." The transcripts were not marked as exhibits or entered in evidence, and they were not taken into the jury room during deliberations. At trial, defense counsel did not object to the use of the transcripts or to their accuracy.

According to Agent Cases's testimony, most of the wiretaps consisted of conversations using coded language to discuss drug sales and the collection of drug debts. Nine tapes involved wiretapped conversations between Morales-Madera and Naranjo-Rosa in April and May 1997. In one conversation on April 15, Morales-Madera referred in coded language to returning bad drugs in exchange for good drugs. Later that day, Morales-Madera called Naranjo-Rosa to ask how much money he should collect for twenty kilograms of cocaine ("twenty parts"). After consulting with Gutierrez-Naranjo, Naranjo-Rosa called Morales-Madera back to tell him in coded language that the price would be $15,000 per kilogram. On April 18, Naranjo-Rosa and Morales-Madera discussed a $30,000 debt owed to Gutierrez-Naranjo. During the conversation, Naranjo-Rosa became upset because Morales-Madera used non-coded language to discuss the debt, and warned Morales-Madera that his phone might be tapped. On April 29, Naranjo-Rosa told Morales-Madera that they had five-eighths of a kilogram, or 625 grams, of heroin ("five whitewall tires"), for which the two discussed an appropriate price. The two also discussed the collection of debt for cocaine ("parts"). On April 30, Naranjo-Rosa instructed Morales in coded language to call someone who would give him $45,000, and the two discussed cocaine ("tires"). In three conversations on May 1 and 2, the two made plans to purchase heroin ("15 wide whitewall tires") in the Dominican Republic and discussed in coded language $1,000 that was missing from a $39,000 payment.

Another tape involved a phone call on April 11 from Morales-Madera, who was using Naranjo-Rosa's wiretapped phone, to American Airlines to arrange their flight to the Dominican Republic that day. FBI Agent Cases testified, based on other wiretapped conversations, that the purpose of this trip was to purchase heroin to be imported into Puerto Rico.

The government also played tapes of conversations in which Morales-Madera did not participate. Three tapes involved coded discussions by co-conspirators regarding Morales-Madera's activities. On April 15, Naranjo-Rosa and Gutierrez-Naranjo discussed Morales-Madera's call to Naranjo-Rosa earlier that day, in which Morales-Madera had asked how much money he should collect for twenty kilograms of cocaine. Later that same day, Naranjo-Rosa told Gomez Felix that he would send him money via Morales-Madera. On April 30, Naranjo-Rosa and Gomez-Felix discussed four and one-half eighths of a kilogram of heroin that Naranjo-Rosa and Morales-Madera were supposed to pick up from the Dominican Republic. Approximately thirty other recordings involved coded conversations between co-conspirators about drug importation or distribution.

In addition to the wiretapped conversations, the government introduced passports, boarding passes, and testimony from Agent Cases about Morales-Madera's travel to the Dominican Republic. Morales-Madera traveled to the Dominican Republic with Naranjo-Rosa on April 11 and again on April 21. Morales-Madera also took one trip to the Dominican Republic with Naranjo-Rosa's cousin on May 2.

Morales-Madera testified at trial in his own defense. In his testimony, he admitted that he had sought to collect debts owed to Gutierrez-Naranjo and that he had assumed at the time that those debts were drug-related.

On August 9, 2001, the jury found Morales-Madera guilty of Count One of the indictment. On January 22, 2002, Morales-Madera was sentenced to 250 months imprisonment, plus a supervised release term of six years and a special monetary assessment of $100. Seeking to reverse his conviction and sentence, Morales-Madera filed this appeal.

II.
A. English Language Issue

This issue involves two statutes: (1) the Jones Act, 48 U.S.C. § 864, which provides that "[a]ll pleadings and proceedings in the United States District Court for the District of Puerto Rico shall be conducted in the English language," and (2) the Court Reporter Act, 28 U.S.C. § 753(b), which requires that "all proceedings in criminal cases [held] in open court ... shall be recorded verbatim."

Morales-Madera's first theory confuses the different statutes and different types of evidence. He argues that the Court Reporter Act required the reporter to transcribe literally and somehow translate into English the wiretap tapes as they were played to the jury. That, in our view, is a misreading of the statute. When the court reporter transcribes the testimony of a witness who testifies in Spanish, the interpreter's English translation is the evidence entered in the record under the Jones Act. United States v. Dejesus Boria, 518 F.2d 368, 370 (1st Cir.1975); Bordas & Co. v. Pizarro, 314 F.2d 291, 292 (1st Cir.1963). The playing of recordings, however, presents a different issue. The conversations on the wiretap tapes are not testimony from witnesses before the court that must be recorded in a verbatim transcript.2

Language in some opinions, ours and others, indicates that the Court Reporter Act is violated when the court reporter fails to simultaneously transcribe the contents of recordings heard by the jury. See ...

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