U.S. v. Dejesus Boria, No. 74-1134
| Decision Date | 13 June 1975 |
| Docket Number | No. 74-1134 |
| Citation | 518 F.2d 368 |
| Parties | UNITED STATES of America, Appellee, v. Nicolas DeJESUS BORIA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
John L. A. De Passalacqua, Rio Piedras, P. R., by appointment of the court, for defendant-appellant.
Jorge Rios Torres, Asst. U. S. Atty., with whom Julius Morales Sanchez, U. S. Atty., San Juan, P. R., was on brief, for appellee.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
Appellant was convicted in a jury-waived trial on four counts of an indictment charging him with, on two occasions, possessing with intent to distribute and distributing heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). He contends on appeal that the court erred in denying his motion to require the recording of Spanish language testimony in Spanish rather than in English translation only, and in denying his motion to require the Government to produce its informer for possible use as an adverse witness.
The Government's principal witness was Hector Cubille, a Puerto Rico policeman working with the Federal Bureau of Narcotics and Dangerous Drugs. There was also testimony from federal agent Amador Fortier, who supervised the investigation and undercover operations, and from a chemist who identified two packages as containing heroin. No evidence was presented on behalf of appellant.
Cubille testified that an informer, Rafael Soriano Baez, phoned federal authorities to say that he had arranged to buy an ounce of heroin from appellant. On April 4, 1973, Cubille drove with the informer to appellant's residence. The informer introduced Cubille to appellant as the friend who wanted to buy the ounce of heroin. Cubille asked if the heroin was good, and appellant replied that it was of the best. Cubille asked about the price, appellant said $1400, Cubille replied it was too much, and a price of $1300 was agreed upon. Cubille asked for the material. Appellant said to wait for a while, got his slippers and shirt from the house, and went across the street and out of sight for about 20 minutes. When appellant returned, Cubille asked if he had the heroin, and appellant said yes. Cubille and the informer went to the car and got $1300 from the trunk and went back to appellant. Cubille handed appellant $1200. When appellant counted the money and noticed that $100 was missing, Cubille gave him another $100. In exchange, appellant gave Cubille a package wrapped in tin foil and containing white powder. Cubille and the informer delivered the package to federal agents, and a field test showed it to contain heroin.
Cubille testified as to a second transaction, also arranged by the same informer, with a codefendant, Wilfredo Tapia Rodriguez. Cubille and the informer went to appellant's residence on April 7, 1973, to discuss the purchase of one-eighth kilogram of heroin. They talked to appellant about the price, but when Tapia did not arrive they told appellant they would return later. They returned at 6:30 p. m. and Tapia arrived in a yellow Camaro at 7 p. m. The informer tried to talk with Tapia, and Tapia told him to wait for a while and went inside appellant's residence. Several minutes later Tapia came out and greeted the informer, who introduced Cubille as the person they had discussed who wanted the eighth of a kilogram of heroin. Cubille told Tapia that appellant had asked for $6000, but that he had only $5000. Tapia said to wait, he would settle the matter. Tapia went inside, came out several minutes later, and said the price was settled at $5000. Tapia went back inside, and appellant came out and told Cubille and the informer to go inside. In the presence of Tapia and the informer, Cubille gave appellant $5000 and in exchange received a package containing a white powder. The package was later turned over to agent Amador.
According to testimony from Cubille and Amador, the informer and his car were searched by agents for drugs on each occasion that Cubille and the informer departed for or returned from appellant's residence. The informer was not kept under surveillance except during the two transactions; he was not under surveillance at the time he said he contacted appellant and Tapia to arrange the sales.
Amador testified that he observed appellant leave his house and disappear into the neighborhood before making the sale to Cubille on the night of April 4. On cross-examination, Amador stated that he knew the informer had previously either sold or used drugs, and that he had become an informer for the local police and then the federal agents after an arrest by the local narcotics officers. An officer in the narcotics division of the local police told Amador that the charges against the informer had been dropped. Amador further testified that the informer's pay, except for subsistence money, depended on sales he could arrange.
We first consider if the court erred in not requiring Spanish testimony to be recorded in Spanish. Under present law, proceedings in the District Court for the District of Puerto Rico are conducted in English, 48 U.S.C. § 864. When a witness testifies in Spanish, questions and answers are channeled through an interpreter, and it is the interpreter's English translation that appears in the record. Bordas & Co. v. Pizarro, 314 F.2d 291, 292 (1st Cir. 1963). When a witness testifies in English, an interpreter is provided on request to translate to a Spanish-speaking defendant.
Appellant's counsel would like all persons in the courtroom to be provided with three-channel hearing devices carrying (1) the actual voices of those speaking in the proceeding, whether in English or Spanish; (2) an all-English version, including a translation of words spoken in Spanish; and (3) an all-Spanish version, including a translation of words spoken in English. Both the original and translated versions would be transcribed and preserved as a part of the record, rather than only the English version.
Whatever its advantages, the proposed system would require additional court personnel and cost; and, since we do not believe the present system is unconstitutional, we must leave it to Congress whether to adopt the changes appellant urges. We are of the opinion that the present system affords Spanish-speaking defendants their rights to due process, a fair trial, the assistance of counsel, and the equal protection of the laws under the fifth, sixth, and fourteenth amendments. In the present case, we find nothing specific to indicate that appellant was affected by linguistic or translation errors, or indeed that there were material uncorrected errors. English testimony and court proceedings were translated into Spanish for his benefit, 1 and his able bilingual counsel and the court 2 could hear the translations being made into and from Spanish. Alleged inaccuracies could be and in several instances were called to the interpreter's attention. There was no error.
Appellant's second claim is that the Government should have been required to produce the informer, Soriano Baez. Before trial, in response to a motion for a bill of particulars, the United States Attorney's office gave appellant's counsel the name and "last known address" of the informer, in purported compliance with the requirements set forth in Roviaro v. United States, 353 U.S. 53, 65 n.15, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The informer was not at the address, and in searching for him appellant heard rumors (which he passed on to the United States Attorney's office) that the informer was in Spain, Carolina, or Aquadilla. Appellant then requested that the Government be required to produce the informer for questioning and possible use as a witness, but the district court denied the motion. At no time did appellant seek to subpoena the informer. During trial, at the end of the Government's evidence, appellant once more moved for the production of the informer for possible use in an entrapment defense. Appellant argued that the Government probably knew where the informer was located, since he had been its agent and allegedly still had local drug charges pending against him. The Assistant United States Attorney in charge of the case continued to deny any knowledge of the informer's whereabouts, taking the position that the Government was under no duty to find him. The court denied appellant's motion. The court also denied appellant's motion under 18 U.S.C. § 3006A(e)(1) for the appointment of an investigator to determine the location of the informer, on the grounds that the motion was belated and that there was no showing that the informer's appearance would benefit appellant.
Appellant was tried and convicted in December, 1973, and...
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