U.S. v. Mendoza

• Decision Date: 16 June 1978
• Docket Number: No. 77-5142,77-5142
• Citation: 574 F.2d 1373
• Parties: 3 Fed. R. Evid. Serv. 650 UNITED STATES of America, Plaintiff-Appellee, v. Arturo Reyes MENDOZA, June Bunch Mendoza, and Oscar Reyes Mendoza, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1373

574 F.2d 1373

3 Fed. R. Evid. Serv. 650

UNITED STATES of America, Plaintiff-Appellee, v. Arturo Reyes MENDOZA, June Bunch Mendoza, and Oscar Reyes Mendoza, Defendants-Appellants.

No. 77-5142.

United States Court of Appeals, Fifth Circuit.

June 16, 1978.

Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for A. Mendoza.

Edward C. Prado, Asst. Federal Public Defender, San Antonio, Tex., Robert Everett L. Looney, Austin, Tex. (Court-appointed), for J. Mendoza and O. Mendoza.

Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, James W. Kerr, Jr., Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before COWEN ^*, Senior Judge, GOLDBERG and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

Defendants-appellants Arturo Reyes Mendoza, June Bunch Mendoza, and Oscar Reyes Mendoza were indicted on one count of conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. ¹ June Mendoza was also indicted on four counts of distributing heroin in violation of 21 U.S.C. § 841(a)(1), and Arturo Mendoza and Oscar Mendoza were indicted on two and three counts, respectively, of aiding and abetting the distribution of heroin in violation of 18 U.S.C. § 2 ² and 21 U.S.C. § 841(a)(1). A jury convicted each defendant on all counts. The trial court sentenced Arturo Mendoza to 35 years' imprisonment with a special parole term of 30 years, June Mendoza to 40 years' imprisonment with a special parole term of 30 years, and Oscar Mendoza to 45 years' imprisonment with a special parole term of 30 years. Defendants now appeal, urging numerous contentions of reversible error. After carefully reviewing the record and considering all 23 of their contentions, we find that the defendants received a fair trial, and therefore affirm the convictions.

I. The Facts

On August 4, 1976, Gene Young, a government informant, introduced Drug Enforcement Administration Agent Frank D. Balazs, who was working undercover, to defendant June Mendoza. Mrs. Mendoza drove Balazs by car to her residence in Corpus Christi, Texas, where she introduced him to her husband, defendant Arturo Mendoza. The Mendozas then discussed the possibility of selling large quantities of heroin, cocaine, and marijuana to Balazs. Subsequently, on four different occasions Mrs. Mendoza, with the assistance of her husband, Arturo Mendoza, and her brother-in-law, Oscar Mendoza, on three of these occasions, sold undercover DEA agents various quantities of heroin at the price of $25,000 a kilogram (2.2046 pounds). The first transaction, on August 5, 1976, involved approximately two ounces of heroin, the second transaction, on August 17, involved approximately one ounce of heroin, the third transaction, on August 18, involved approximately one kilogram of heroin, and the final transaction, on September 28, involved approximately twelve kilograms (approximately 26 pounds) of heroin. The Government's evidence at trial consisted almost exclusively of the testimony of the undercover DEA agents involved in the sales and of highly incriminating government tape recordings of conversations between the agents and the three defendants.

II. The Tapes

Of their many objections, the Mendozas complain most often about the tapes used to convict them. The Government recorded these tapes, which, as previously noted, were of conversations about the sale of narcotics between the undercover agents and the defendants, by concealing a recording device on Agent Belazs' person and by attaching a similar device to the earpiece of telephones used by the agents to talk with the defendants. Congress, through Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, has sanctioned the use of such technology by law enforcement authorities in their fight against crime, provided the authorities comply with the provisions of the Act in doing so.

Defendants' first contention is that the Government did not seal the tapes under judicial direction and therefore violated 18 U.S.C. § 2518(8)(a), which provides:

The contents of any wire or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire or oral communication under this subsection shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (1) and (2) of section 2517 of this chapter for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or oral communication or evidence derived therefrom under subsection (3) of section 2517.

Thus, according to defendants, the trial court should have suppressed the tapes pursuant to 18 U.S.C. §§ 2515 and 2518(10)(a). ³ The sealing requirement of Section 2518(8)(a), by the literal wording of the statute, pertains only to recordings made pursuant to a judicial order authorizing the interception of a wire or oral communication. See 18 U.S.C. §§ 2516, 2518(1)-(7) & (9), 2519. In this case judicial authorization to record the conversations was not necessary because the tapes were made with the consent of one of the parties to the conversations in each case the undercover agent who was doing the taping. 18 U.S.C. § 2511(2)(c) provides that such consent renders lawful the interception of a wire or oral communication:

It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

In any event, Congress' primary purposes in legislating the sealing requirement were to safeguard recordings from editing or alteration, United States v. Sklaroff, 5 Cir., 506 F.2d 837, 840, cert. denied, 423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105 (1975), and to maintain the confidentiality of recordings, United States v. Abraham, 6 Cir., 1976, 541 F.2d 624, 627-28. Both purposes were served with respect to the consensual recordings in this case. The Assistant United States Attorney questioned Agent Balazs at length as to the chain of custody and the authenticity of the tapes, and Balazs responded that the tapes had been in the continuous custody of the Drug Enforcement Administration since they were made and that no changes, additions, or deletions had been made to them. Defendants' contention is therefore without merit.

Defendants next assert that the tape of a telephone conversation between defendant June Mendoza and government informant Gene Young was inadmissible, see 18 U.S.C. §§ 2515 and 2518(10)(a), because the Government offered no proof that the recording was made pursuant to a court order, see 18 U.S.C. §§ 2516, 2518, 2519, or with the consent of one of the parties to the conversation, see 18 U.S.C. § 2511(2)(c). Defendants Arturo Mendoza and Oscar Mendoza lack standing to complain of the tape's admissibility because neither has a legitimate expectation of privacy either as a party to the conversation or through a possessory interest in the tape. United States v. Juarez, 5 Cir., 1978, 573 F.2d 267, 276, quoting United States v. Ransom, 5 Cir., 1975, 515 F.2d 885, 889, cert. denied, 424 U.S. 944, 96 S.Ct. 1412, 47 L.Ed.2d 349 (1976). Turning to the merits of Mrs. Mendoza's contention, the record is clear beyond question that DEA Agent John B. Brown, III provided Young with the necessary equipment to record conversations between himself and Mrs. Mendoza, that Young voluntarily recorded the conversation at issue between himself and Mrs. Mendoza, and that he then voluntarily turned over the tape to Brown. The recording was in all respects consensual. See United States v. Juarez, supra, at 278.

Defendants also contend that the tapes were substantially inaudible and unintelligible, that the Government's transcripts of the tapes, which were provided to the jury for it to follow while the tapes were being played, were inaccurate, and that the trial court erroneously denied defendants' request for a continuance in order to prepare their own transcripts and prove the Government's inaccuracies. A review of the tapes indicates that portions of some of them are inaudible and unintelligible. This does not necessarily make them inadmissible, however. The rule in this Circuit is that tape recordings that are partially inaudible and/or unintelligible are not inadmissible unless these portions "are so substantial as to render the recording as a whole untrustworthy," a determination that "is left to the sound discretion of the trial judge." United States v. Avila, 5 Cir., 443 F.2d 792, 795-96, cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258 (1971). See United States v. Juarez, supra, at 278. We find no abuse of the trial court's discretion in this case in admitting the tapes.

Defendants' complaints as to the accuracy of the Government's transcripts and the trial court's denial of their request for a continuance are also meritless. In United States v. Onori, 5 Cir., 1976, 535 F.2d 938, a panel of this Court discussed the proper procedures to be followed by a trial court in admitting transcripts of tape recordings. We noted first that it is within the discretion of the trial court to allow...