U.S. v. Camargo

• Decision Date: 23 July 1990
• Docket Number: No. 89-3424,89-3424
• Citation: 908 F.2d 179
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ancesar CAMARGO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 179

908 F.2d 179

UNITED STATES of America, Plaintiff-Appellee, v. Ancesar CAMARGO, Defendant-Appellant.

No. 89-3424.

United States Court of Appeals Seventh Circuit.

Argued May 29, 1990.

Decided July 23, 1990.

William J. Cook, Asst. U.S. Atty., Ava M. Gould, Barry R. Elden, Asst. U.S. Atty., Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee, U.S.

John A. Meyer, Chicago, Ill., for defendant-appellant, Ancesar Camargo.

Ancesar Camargo, pro se.

Before BAUER, Chief Judge, FLAUM, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

BAUER, Chief Judge.

A jury convicted Ancesar Camargo of one count of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846, one count of possession with intent to distribute and one count of distributing cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Camargo raises on appeal several challenges to both his conviction and his sentence, all of which are without merit. We therefore affirm.

I.

Henry Olave was an illegal immigrant from Cali, Colombia who worked in a body shop on the near northwest side of Chicago installing "stash" boxes used to conceal narcotics in cars. Olave also ran drugs from Florida to Chicago and was arrested in 1986 during one of these runs. While serving his seven year sentence, Olave was approached by Detective Berti of the Chicago Police, the officer who had arrested him in 1986, and asked to work as a confidential informant. Olave thereafter was granted work release by the Illinois Parole Board and returned to work in the body shop.

In 1988, Olave went to work for Freddie Correa at Wicker Park Auto Repair. Here Olave met Ancesar Camargo, Correa's brother, and Guillermo Reyes, one of Correa's employees.

On January 11, 1989, Reyes approached Olave and told him that he was expecting a shipment of cocaine and wondered whether he had any customers. Later that day Olave told Camargo that he might have some customers. Camargo said that he would appreciate the help because he had lost money on an earlier drug transaction. Olave called his contact at the Drug Enforcement Agency ("the DEA") and was instructed to purchase cocaine.

The next day Olave contacted Camargo by beeper. When Camargo called Olave back, Olave told him that he wanted 3 kilograms of cocaine. This conversation was recorded and the transcript later provided to the jury. A price of $15,000 per kilogram was set and Olave told Camargo that he would pay for the drugs the following week. Camargo then told Olave that he would contact Reyes and tell him to expect Olave's call.

On January 13, Olave called Reyes and they arranged to meet at the Venture department store on Peterson Avenue. This conversation also was recorded. Prior to the meeting, Olave met with Detective Berti and was equipped with a body recorder. At this point DEA agent Sabrina Carlson joined Olave to pose as his sister-in-law "Martha."

Olave and Carlson drove to the Venture in Carlson's car. When Reyes failed to appear, Olave called Camargo on Carlson's mobile phone and asked "what was going on with William [Reyes], how come he was taking too long?" Camargo told him to look for Reyes inside. Thereafter, Olave spotted Reyes outside the store.

Olave, Reyes and Carlson then drove to a hot dog stand and had lunch. Reyes left to call Camargo and returned saying that everything was fine. Reyes warned them, however, they were having problems selling the cocaine because it was yellowish. Olave was not deterred, informing Reyes that Camargo had approved a consignment sale of this cocaine.

The three of them drove to an almost empty apartment at 5713 N. Magnolia Street. Reyes retrieved a large duffel bag from the front closet. From the nine kilogram-sized bricks of cocaine inside the duffel, Carlson selected three. ¹ Olave said that he would pay next Tuesday or Wednesday and would call when arrangements were final. Reyes agreed with the arrangement as long as it was okay with Camargo. Olave and Carlson dropped Reyes back at the Venture.

Six days later, on January 19, Olave called Reyes and told him that the $45,000 payment would be delayed because he had to clean the cocaine before he could sell it. This conversation was recorded. Two days later, Olave called Reyes to tell him payment would be forthcoming. Reyes said that Camargo wanted to talk to him. When Olave called Camargo, Camargo told him that he better resolve his payment problems. These conversations also were recorded.

On January 25, Olave called Camargo to say that he had the money and asked him to accompany Reyes when Reyes collected payment. He also said that when they arrived at the appointed destination, he wanted Camargo to get in the car with "Martha" (Agent Carlson).

Camargo and Reyes were arrested and later indicted for conspiracy to possess and distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846, and for possession and distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Prior to trial, Reyes pleaded guilty to all charges. Camargo went to trial before a jury which convicted him on all charges. The district court entered judgment on the verdict and sentenced Camargo to 168 months imprisonment on each count, to run concurrently, followed by five years supervised release. Camargo filed a timely notice of appeal.

II.

Camargo raises a number of issues of appeal, several of which concern the tape-recorded evidence. Camargo contends that the district court committed reversible error by admitting into evidence written, translated transcripts of the tape-recorded conversations between Olave and Reyes, and Olave and Camargo; by permitting the transcripts to be used during jury deliberations; and by improperly instructing the jury about the use of the transcripts. We disagree.

The decision to permit the use of written transcripts of tape-recorded conversations is committed to the sound discretion of the district court. United States v. Keck, 773 F.2d 759, 766 (7th Cir.1985). In this case, the transcripts were a virtual necessity because the recorded conversations took place in Spanish. Defense counsel did not and does not contend that the transcripts were inaccurate, nor did defense counsel proffer an alternative translation of the conversations at trial. Compare United States v. Briscoe, 896 F.2d 1476 (7th Cir.1990); United States v. Zambrana, 841 F.2d 1320 (7th Cir.1988). Indeed, counsel did not even object at trial to the admission of the transcripts into evidence, and so has waived any argument before this court as to their admission. United States v. Wynn, 845 F.2d 1439, 1442 (7th Cir.1988).

Counsel did object to the court's decision to permit the transcripts to accompany the jury into the deliberation room. This court repeatedly has approved the practice of sending transcripts to the jury room. See, e.g., United States v. Doerr, 886 F.2d 944, 966 (7th Cir.1989); United States v. Puerta Restrepo, 814 F.2d 1236, 1242 (7th Cir.1987); United States v. Dorn, 561 F.2d 1252, 1257 (7th Cir.1977), overruled on other grounds, United States v. Read, 658 F.2d 1225, 1236 (7th Cir.1981). See also United States v. Brown, 872 F.2d 385, 392 (11th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 253, 107 L.Ed.2d 203 (1989) (absent a showing that the transcripts are inaccurate or that specific prejudice occurred, no error in allowing jury to have transcripts during deliberations).

Camargo acknowledges that this practice is commonplace, but contends that special jury instructions are needed in such circumstances. In this case, the court instructed the jury that the taped conversations constituted the real evidence, and that the transcripts were the translator's interpretation of the conversations which took place in Spanish. In other situations in which the transcripts have been sent back to the jury room, the court has added the instruction that should there be any discrepancy between the tapes and the transcripts, the tapes control. Doerr, 886 F.2d at 966; Puerta Restrepo, 814 F.2d at 1241; Dorn, 561 F.2d at 1257. Such an instruction would have been a throwaway here; the tapes were in Spanish whereas the jury was English-speaking, and further, Camargo never argued that the transcripts were inaccurate. We therefore conclude that the court committed no error in its handling of these transcripts.

Second, Camargo contends that the district court committed error by refusing to admit a transcript proffered by the defense. Camargo sought to admit the transcript of the recording of the October 12 meeting between Olave, Carlson and Reyes. The district court refused to admit this transcript, finding that most of the tape was unintelligible (Olave's body recorder had malfunctioned) and would confuse the jury.

Generally, tape recordings which are only partially unintelligible are admissible unless the recording as a whole is rendered untrustworthy by the unintelligible portions. See Zambrana, 841 F.2d at 1337, and the cases cited therein. The determination of untrustworthiness, like the ultimate determination of admissibility, is left to the sound discretion of the district court. Id. In this case, the court found that most of the tape was unintelligible and would confuse the jury. Camargo does not offer any argument to refute either of the court's findings. Accordingly, we find that the district court did not abuse its discretion.

Third, Camargo claims that the court failed to respond properly to a jury question. After the jurors had deliberated a couple of hours, they sent Judge Holderman the following note:

Your Honor: Regard to Count I, number 4 regards Guillermo Reyes. Should our decision include number 4 or not?

Count 1, paragraph 4 of the indictment stated:

4. It was further part of the conspiracy that the defendant Guillermo Reyes would deliver quantities of cocaine on consignment to individuals on behalf of the defendant C...