U.S. v. Vazquez Guadalupe

• Decision Date: 18 May 2005
• Docket Number: No. 02-2505.,No. 02-2506.,02-2505.,02-2506.
• Citation: 407 F.3d 492
• Parties: UNITED STATES of America, Appellee, v. Jose R. VAZQUEZ GUADALUPE; Victor J. Pacheco-Diaz, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 492

407 F.3d 492

UNITED STATES of America, Appellee, v. Jose R. VAZQUEZ GUADALUPE; Victor J. Pacheco-Diaz, Defendants, Appellants.

No. 02-2505.

No. 02-2506.

United States Court of Appeals, First Circuit.

Submitted April 5, 2005.

Decided May 18, 2005.

J. Michael McGuinness, with whom The McGuiness Law Firm was on brief, for appellant Pacheco-Diaz.

Ignacio Fernández de Lahongrais on brief, for appellant Vázquez Guadalupe.

German A. Rieckehoff, Assistant United States Attorney, with whom Nelson Pérez-Sosa, Assistant United States Attorney, Senior Appellate Attorney, and H.S. Garcia, United States Attorney, were on brief, for appellee.

Before SELYA, LYNCH, and LIPEZ, Circuit Judges.

LYNCH, Circuit Judge.

Defendants present arguments to vacate criminal convictions where the prosecution introduced Spanish language audio tapes containing evidence of the defendants' criminal activity. The issues raised here concerning compliance with the Court Reporter Act, 28 U.S.C. § 753(b), and the Jones Act, 48 U.S.C. § 864, have been resolved by our decision in United States v. Morales-Madera, 352 F.3d 1 (1st Cir. 2003). We reaffirm the principle of Morales-Madera that where English transcripts of foreign language conversations were presented to the jury, and no objection was raised as to the accuracy of transcription or translation, the failure to put the transcripts into evidence may be cured under Fed. R.App. P. 10(e). We add today the requirement that the government must in these circumstances supplement the record promptly upon the filing of any notice of appeal, so that appellate counsel for the defendant has adequate opportunity to review the supplemented record before defendant's brief is due.

Concluding that the challenges going both to the verdicts and to the sentences are without merit, we affirm the convictions and sentences.

I.

The prosecutions of these two defendant police officers are part of a series of cases resulting from an undercover investigation known as "Honor Perdido" into corruption among officers of the Police of Puerto Rico. For a fuller description of the Honor Perdido investigation, see United States v. Flecha-Maldonado, 373 F.3d 170, 172 (1st Cir.2004). Defendant José Vázquez Guadalupe was a police officer assigned to the Criminal Investigative Center of the Police of Puerto Rico ("PPR", a single unified police department). Defendant Victor Pacheco-Diaz was a PPR officer assigned as a task force agent to work with the Federal Bureau of Investigation ("FBI") on a federal anti-drug task force in Fajardo, Puerto Rico. Both officers were ensnared in an FBI sting operation: they agreed to and did participate in what they understood to be the transport of cocaine in Puerto Rico. The two defendant officers met with an undercover agent/"dealer" named Arturo Ortiz Colón and agreed to protect and transport five kilograms of cocaine in return for payments of money.¹

On June 15, 2000, the defendants provided protection for the transport of the cocaine. The defendants took advantage of their positions as officers. They used a car assigned to the federal anti-drug task force. Both defendants were armed with weapons, their police weapons, so that they could protect the drugs. They talked about what would happen if they were stopped and agreed that they would identify themselves as police officers and so be able to avoid any problems. Indeed, Pacheco-Diaz offered not only to provide protection for the transport of drugs but to deliver the cocaine himself. At the delivery point they used police counter-surveillance techniques to check for law enforcement vehicles. They successfully accomplished the delivery of the drugs. On June 20 Ortiz, the undercover agent, met with Vázquez and paid him $3,000 for the transport of the drugs. That same day Ortiz met with Pacheco-Diaz and paid him $3,000. Pacheco-Diaz indicated he was available for future escorts.

Pacheco-Diaz became suspicious and himself investigated the purported dealer Ortiz, found some information suggesting that Ortiz was an undercover agent, and asked to meet with him. Pacheco-Diaz then met agent Ortiz, asked why the officer "want[ed] to screw [him]," and then threatened to kill him. Shortly thereafter, both defendants were arrested.

After a jury trial from April 11 through April 19, 2002, the two defendant officers were convicted on all three counts: one count of conspiracy to distribute narcotics (Count I) and one count of attempt to distribute narcotics (Count II), in violation of 21 U.S.C. § 846, and a third count of use of a firearm during the commission of a drug trafficking crime (Count III), in violation of 18 U.S.C. § 924.

Defendant Vázquez was sentenced to 248 months of imprisonment, consisting of 188 months for each of the drug trafficking counts to be served concurrently, and 60 months for the third count of use of a firearm during commission of a drug trafficking crime, to be served consecutively to the time for Counts I and II. He was also sentenced to a supervised release term of eight years for Counts I and II and three years for Count III, to be served concurrently. Defendant Pacheco-Diaz received the same prison sentence as Vázquez: 188 months concurrent for Counts I and II, and 60 months consecutive for Count III. He also received eight years of supervised release for Counts I and II and three years for Court III, to be served concurrently.

Both appealed, raising attacks on their convictions and their sentences.

II.

A. Arguments of Defendants

1. Pacheco-Diaz

Pacheco-Diaz argues that there were numerous trial errors which should result in his conviction being vacated. His primary argument is that the trial was flawed because the court did not instruct the translator to translate Spanish language conversations on audio tapes introduced into evidence, and the court reporter to transcribe them simultaneously with the playing of the tapes. He describes this as a violation of the Court Reporter Act and a violation of the rule the Supreme Court set down in Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964). Pacheco-Diaz also alleges a series of evidentiary errors: in permitting a testifying agent to present an overview of the case, in admitting bad act evidence and hearsay, in denying his request to present a video tape, and in denying a motion seeking production of files. He argues that the overall effect of the errors constitutes prejudicial error.

Pacheco-Diaz further argues that the trial court erred in failing to grant his Rule 29 motion for judgment of acquittal. He argues that the verdict could not be based on the testimony of an admittedly corrupt cooperating witness who was paid financial compensation, and that the evidence was insufficient to support a conviction, particularly on Count III, the charge that he used a firearm in the commission of a drug trafficking crime.

As to sentencing, he argues that the sentence should be vacated because appellant was subject to sentencing entrapment and manipulation.²

2. Vázquez

Defendant Vázquez makes two arguments. He objects to presenting the audio tapes, which were solely in Spanish, without ascertaining if the jurors were fluent enough in Spanish to understand the tapes. He secondly argues that the Guidelines maximum supervised release term for his offense was five years, and therefore the court erred in sentencing the defendant to eight years of supervised release because defendant did not receive prior notice before receiving a sentencing enhancement. See United States v. Cortes-Claudio, 312 F.3d 17, 23 (1st Cir.2002). The government agrees with the second contention and so without further discussion we will remand that portion of Vázquez's sentence pertaining solely to the eight years of supervised release for correction of that error. We note that Pacheco-Diaz similarly received eight years of supervised release term, although it is not apparent from the briefing or record whether he received adequate notice. In light of the government's concession in the companion case, we will also remand the supervised release portion of Pacheco-Diaz's sentence for the limited purpose of determining whether he was similarly sentenced in error and, if so, for correction of that error.

B. Merits of Defendants' Arguments

To set the context, we describe the use of audio and video tape evidence in this case. Much of the government's case was proven through audio and video tapes of the defendants' activities. Accordingly, before trial, the government prepared Spanish transcripts of what was said in those tapes. These Spanish transcripts were also translated into English. Before trial, counsel for the defendants were given copies of both the Spanish version and the English translations of what was said in the tapes. The defense counsel also had access to the tapes themselves, enabling them to check for both types of accuracy. At trial, Pacheco-Diaz's counsel objected to the reliability of one tape and its transcription, and the district judge excluded that tape from evidence. Defense counsel raised no objection at any time to the accuracy of the Spanish transcription of the conversations nor to the accuracy of the English translations as to any other tapes.

The facts distinguish our decision in United States v. Rivera-Rosario, 300 F.3d 1 (1st Cir.2002). There, the government failed to follow these procedures; more than 180 tapes were played for which there was never any English translation in the district court proceedings; the government failed to comply with Fed. R.App. P. 10(e) and then attempted, for the first time on appeal before this court, to provide English translation never available at the district court; furthermore, there were serious factual disputes as to the translation's accuracy. Id. at 5-9.

At trial in this case, the audio and video tapes were played for the jury. The jury also was given copies of the Spanish and English language...