U.S. v. Diaz, 198

• Decision Date: 14 December 1989
• Docket Number: D,No. 198,198
• Citation: 891 F.2d 1057
• Parties: UNITED STATES of America, Appellee, v. Isaac Felipe DIAZ, Appellant. ocket 89-1147.
• Court: U.S. Court of Appeals — Second Circuit

Page 1057

891 F.2d 1057

UNITED STATES of America, Appellee, v. Isaac Felipe DIAZ, Appellant.

No. 198, Docket 89-1147.

United States Court of Appeals Second Circuit.

Argued Sept. 29, 1989.

Decided Dec. 14, 1989.

Robert C. Dorf, Dorf & Perlmutter, New York City, for appellant.

Matthew E. Fishbein, Asst. U.S. Atty. (Andrew J. Maloney, U.S. Atty., for the E.D.N.Y., Beryl A. Howell, Asst. U.S. Atty., on the brief), for appellee.

Before OAKES, Chief Judge, and LUMBARD and PIERCE, Circuit Judges.

OAKES, Chief Judge:

Isaac Felipe Diaz appeals from his conviction by a jury in the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., Chief Judge, for nine counts of possessing checks stolen from the United States mails, 18 U.S.C. § 1708 (1982), and one count of conspiring to possess the same stolen checks, 18 U.S.C. § 371 (1982). We reverse the conviction and remand for a new trial.

FACTS

The Government's case against Diaz centered around nine separate checks sent through the United States mails--five payable to the International Tool Manufacturing Company ("ITM") of Elmhurst, New York, and four more payable to the Catholic War Veterans ("CWV") of Woodside, New York. The five checks intended for ITM ranged in value between $31.45 and $873.00; the four meant for CWV spanned between $8.25 and $60.00. A representative from ITM and another from CWV each testified that their respective organizations never received the checks in question.

According to the testimony of Benvenido Espejo, who worked the cash register and balanced the account books at a Brooklyn grocery store, or bodega, operated by Diaz, from late February through early March of 1988, Espejo began to notice unusually large checks passing through Diaz's store, including some payable to ITM and CWV. Although regular customers from time to time would cash checks at the store, the amounts would rarely exceed $50. Because of the size of some of these checks, however, store revenues shot up markedly towards the end of February. Espejo added that some suppliers returned to the store checks which had been signed over to them, because their makers had stopped payment on them.

Espejo testified that when he asked Diaz about the checks, Diaz told him that Rene Morety ¹ and Tony Diaz, who is not related to the defendant, were the persons cashing the large checks. According to Espejo, Diaz said he was paying a discount price on the checks, which, upon later review of the store's books, Espejo concluded averaged out to approximately $200 in cash for every $1000 on the face of the checks. However, several months later, Diaz told Espejo that he had paid the full face amount of the checks advanced by Morety and Tony Diaz. During this later conversation, Diaz admitted to knowing that the checks were stolen.

On March 11, 1988, a Government agent, Postal Inspector Sol Farash, approached Diaz regarding some suspected stolen checks. Diaz first denied knowledge of any of these checks, but after Inspector Farash showed Diaz copies of four checks bearing his signature, Diaz remembered the checks and informed Inspector Farash that Morety and Tony Diaz had cashed approximately twenty checks, including those four, at his store. Diaz told Inspector Farash where Tony Diaz lived and drove with Inspector Farash to show him where he thought Morety lived. The two were together in the car for approximately twenty minutes, during which time they conversed exclusively in English. Diaz agreed to sign a statement prepared by Inspector Farash which restated that Morety and Tony Diaz had cashed approximately twenty checks at his store. Although Inspector Farash and Diaz previously had communicated only in English, Inspector Farash had Espejo orally translate the statement into Spanish for Diaz before Diaz signed it.

Two months later, on May 2, 1988, Inspector Farash returned to Diaz's store, accompanied by a second inspector, C.F. Scalfani. Inspector Farash requested that Ramon Baez, who was in the store at that time, read Diaz his Miranda rights in Spanish from a prepared form which set out the required warnings. Diaz then waived his Miranda rights, signing a form, written in Spanish, which listed his rights and acknowledged his waiver of them. Inspector Farash interviewed Diaz for thirty minutes in English and Spanish, using Baez as an interpreter when necessary. Diaz then admitted that because none of the checks cashed at his store by either Morety or Tony Diaz had been made out to them, he did suspect something was amiss but went ahead and cashed them anyway. He added that he generally received a check cashing fee of between $10 and $15 per check. Diaz stated that he did not convey his suspicions to Inspector Farash during their March 11 conversation because he feared he would get himself in trouble. Scalfani transcribed Diaz's responses into a statement which Diaz signed after it was read back to him in Spanish.

Inspector Farash returned one last time, on June 28, 1988, and arrested Diaz. Inspector Farash then took him to the Postal Inspectors' office in New York City. Although Inspector Farash admittedly does not speak Spanish, Inspector Farash read Diaz his Miranda rights from a Spanish-language form. Diaz then executed the same form he signed on May 2, enumerating his Miranda rights and acknowledging his waiver of them. After waiving his rights, Diaz said he knew nothing about the checks in question.

In his defense, Diaz sought to establish that he did not know the checks cashed at his store by Morety and Tony Diaz were stolen. To this end, he recalled Benvenido Espejo and sought to show that Espejo had invested and lost a considerable sum of money in Diaz's store, had been paid for cooperating with the Government, and thus had a motive to lie about Diaz's knowledge regarding the checks' origins. Prior to trial, Diaz had moved to suppress his oral and written statements on grounds they were elicited from him involuntarily, in violation of the Fifth Amendment. The trial court denied the motion. The jury convicted him on the conspiracy count and all nine possession counts.

Diaz was sentenced on March 17, 1989. Although the transcript of the sentencing hearing reflects that Diaz received a sentence of six months' imprisonment, a $75 fine, and a $50 special assessment, the judgment of conviction records the fine as $7,500 and the special assessment as $500. The Government concedes that the proper fine is $75 but asserts that the correct special assessment is $500.

On appeal, Diaz contends that the trial court erred in denying his motion to suppress. Additionally, he asserts that the trial court's charge to the jury that it could infer from Diaz's possession of the stolen checks that Diaz had participated in the theft of the stolen checks was unduly prejudicial and deprived him of a fair trial. Finally, he challenges the $500 special assessment appearing on the judgment of conviction. Although we do not find that the admission of any of the statements Diaz made to the postal inspectors violated his Fifth Amendment rights, we agree with Diaz that the trial court's charge to the jury allowing it to infer his participation in the theft of the checks in question did deprive him of a fair trial. Accordingly, we reverse all counts of the conviction and remand for a new trial. Because we reverse the conviction, we do not address Diaz's challenge to the special assessment.

DISCUSSION

I. Fifth Amendment Claim

Diaz raises several challenges to the admissibility of the incriminating statements he made to Inspector Farash. First, he argues that the trial court erred in not suppressing his signed statements from March 11 and May 2, because the Government, by failing to call the persons who translated those statements for him, Benvenido Espejo and Ramon Baez, to testify to the accuracy of the translations, did not carry its burden of proving that Diaz's adoption of the statements was knowing and voluntary. Second, Diaz likewise argues that because the Government failed to call Baez to testify as to the accuracy of his translation of the Miranda warning advanced on May 2, it did not carry its burden of proving that Diaz knowingly and voluntarily waived his Miranda rights. Finally, Diaz challenges the Miranda warnings delivered to him in Spanish by Inspector Farash on June 28 and similarly alleges that the Government failed to prove their accuracy and thus failed to show that Diaz's waiver on June 28 was knowing and voluntary.

Before addressing the substance of Diaz's Fifth Amendment claims, we first outline the standards governing our inquiry. When a criminal defendant challenges the admissibility of a confession, the Government bears the burden of proving the voluntariness of the confession by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 482-89, 92 S.Ct. 619, 623-27, 30 L.Ed.2d 618 (1972). If the Government asserts that a defendant has waived his Fifth Amendment rights, here, too, it carries the burden of proving waiver by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 167-69, 107 S.Ct. 515, 522-23, 93 L.Ed.2d 473 (1986)...