U.S. v. Franco, s. 95-50615

• Decision Date: 08 July 1997
• Docket Number: 96-50029 and 96-50021,Nos. 95-50615,s. 95-50615
• Citation: 136 F.3d 622
• Parties: 98 Cal. Daily Op. Serv. 1047, 98 Daily Journal D.A.R. 1463 UNITED STATES of America, Plaintiff-Appellee, v. Salvador FRANCO; Francisco J. Herrera-Flores, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Jose Eliodoro TOPETE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 622

136 F.3d 622

98 Cal. Daily Op. Serv. 1047, 98 Daily Journal

D.A.R. 1463

UNITED STATES of America, Plaintiff-Appellee, v. Salvador FRANCO; Francisco J. Herrera-Flores,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Jose Eliodoro TOPETE, Defendant-Appellant.

Nos. 95-50615, 96-50029 and 96-50021.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 8, 1997.

Argued by Video-Conference Call

and Submitted Aug. 13, 1997.

Decided Feb. 11, 1998.

Gerald Werksman, Newport Beach, CA; William J. Genego, Santa Monica, CA; Yolanda M. Barrera, Los Angeles, CA, for defendants-appellants.

J. Daniel McCurrie, Assistant United States Attorney, Santa Ana, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Linda H. McLaughlin, District Judge, Presiding. D.C. No. CR-94-00045-LHM.

Before: CANBY and THOMAS, Circuit Judges, and KING, ^* District Judge

CANBY, Circuit Judge:

Salvador Franco, Jose Eliodoro Topete, and Francisco Herrera-Flores appeal their jury convictions for possession of methamphetamine with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). Franco and Topete also appeal their convictions for conspiracy to distribute methamphetamine, a violation of 21 U.S.C. § 846. Topete also challenges his sentence under the Guidelines. We affirm the judgments of the district court in all respects.

BACKGROUND

In early 1994, one Macario Ayala contacted Osvaldo Garcia, a confidential informant for the Drug Enforcement Administration ("DEA"), for the purpose of introducing him to some persons who were interested in selling narcotics. Ayala took Garcia to a "Frames Plus" furniture shop, where he introduced Garcia to appellant Franco, the owner of the shop, and Efren Gonzalez, Franco's nephew. This meeting was the first of many in which Garcia wore a body wire and recorded conversations with the defendants and their co-conspirators. Franco and Gonzalez discussed selling Garcia 30 kilograms of cocaine and 10 pounds of methamphetamine. Garcia told Gonzalez and Franco that he could supply them with ephedrine and hydriodic acid, precursor chemicals used to create methamphetamine. During the ensuing days, Garcia supplied Franco and Gonzalez with samples of precursor chemicals, and Franco and Gonzalez gave Garcia a sample of methamphetamine. Franco and Gonzalez referred to the source of the methamphetamine as "Lolo," appellant Jose Topete, and said that Lolo was working with another supplier, "Nacho," who the government alleged was appellant Francisco Herrera-Flores ("Herrera").

The next day Garcia was introduced to Topete at Franco's shop. Topete agreed to provide Garcia with nine pounds of methamphetamine in return for 55 pounds of ephedrine. This exchange was effectuated a few days later between Gonzalez, purportedly acting on behalf of Topete, and Garcia. Garcia later arranged to purchase 40-80 pounds of methamphetamine from Topete and Gonzalez.

On the morning that this large shipment was to be delivered, Herrera, Topete, Gonzalez and Franco all met at a residence in Azusa owned by Topete. After some delay, Herrera left and drove his car to a strip mall where he met Jose Reyes-Ramos ("Reyes"). There a detective saw Reyes take a box from Herrera's car and place it in Reyes' pickup truck. (At trial, the detective described it as Franco, Topete, and Gonzalez were convicted of conspiracy to possess and distribute methamphetamine, and of possession of methamphetamine with intent to distribute. Herrera was convicted of possession of methamphetamine with intent to distribute. Reyes was acquitted of the same charge. Franco, Topete and Herrera now appeal.

a brown cardboard box with red lettering; Herrera testified that it was a tool-box). Herrera and Reyes then drove the pickup truck to the Azusa residence. Shortly thereafter, Gonzalez drove the pickup truck to Franco's shop, followed by Franco in a van. After a stop at the shop, Gonzalez drove the van to Garcia and delivered the van, containing two cardboard boxes holding a total of 55 pounds of methamphetamine. Gonzalez was then arrested, and the remaining defendants were arrested shortly thereafter.

ANALYSIS

I. The Transcripts.

a. Sending unread transcripts into the jury room.

The government's investigation into the methamphetamine conspiracy produced audio tape-recordings of approximately 110 conversations, telephonic and face-to-face, between Garcia, Franco, Gonzalez, and Topete. All of those conversations were conducted solely in Spanish. The recordings themselves were placed in evidence but not played for the jury. English-language transcripts were also placed in evidence, but only 18 of them were read in full to the jury. All 110 transcripts were, however, made available to the jury during its deliberations.

Appellants collectively contend that the district court's decision to allow the jury to take the unread transcripts of the tape-recorded conversations into the jury room was structural error, requiring reversal under the principle we established in United States v. Noushfar, 78 F.3d 1442 (9th Cir.1996). We conclude that the rule of Noushfar does not apply in the circumstances of this case.

In Noushfar, the district court had admitted into evidence, but had not played for the jury, several taped conversations (recorded in English). Over objection, the court sent the tapes and a tape-player into the jury room. We held that, in so doing, the district court committed structural error, requiring automatic reversal. We pointed out that we had previously held it to be a violation of Fed.R.Crim.P. 43(a) for a jury to replay without the presence of the defendant a tape that had earlier been heard in open court. See United States v. Kupau, 781 F.2d 740, 743 (9th Cir.), cert. denied, 479 U.S. 823, 107 S.Ct. 93, 93 L.Ed.2d 45 (1986). We then opined that the error in Noushfar was far more serious:

The court completely abdicated control of the presentation of the evidence. It made no analysis of whether undue emphasis might be placed on some of the recorded conversations. The court gave no instruction that the jurors must listen to the tapes in their entirety in accordance with the rule of completeness and Fed.R.Evid. 106. And this error undermines one of the most fundamental tenets of our justice system: that a defendant's conviction may be based only on the evidence presented during the trial. Sending the tapes to the jury room is akin to allowing a new witness to testify privately, without cross-examination, to the jury during its deliberations.

Noushfar, 78 F.3d at 1445.

Noushfar is different from our case, however, for at least two reasons. First, and most important, the trial court in Noushfar had sent the unplayed tapes to the jury "[o]ver vigorous objections." Id. at 1444. Here, there was no objection to the district court's decision to send the unread transcripts to the jury room and, for reasons we will explain, prior motions or inquiries of defense counsel did not suffice in place of such an objection.

Second, Noushfar involved the sending of unplayed tapes to the jury. Our case involves the sending of unread transcripts to the jury, when the tapes were not played because they were in a foreign language. This distinction alone does not necessarily render Noushfar inapplicable to the present situation, but it highlights the need for explicit objections. To explain why we conclude that Noushfar does not require reversal The district court gave the defendants abundant time to review the English-language transcripts and the tapes. It informed the defendants that, to the extent that they did not succeed in securing the government's consent to suggested corrections, they should submit competing translations of disputed passages. Although the defendants did succeed in making numerous agreed corrections, they submitted no competing translations. The district court accordingly was quite correct in concluding that the defendants had not placed the accuracy of the transcripts in issue. See United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir.1985) (failure to submit own translation precludes attack on accuracy of transcript on appeal); United States v. Armijo, 5 F.3d 1229, 1234-35 (9th Cir.1993) (opportunity of defense to introduce alternative versions is factor in admissibility of transcripts).

here, it is necessary to describe in more detail both the procedural situation in the district court and the state of our law.

The district court also correctly held that the relation between tapes and transcripts changes when the tapes are in a foreign language. When tapes are in English, they normally constitute the actual evidence and transcripts are used only as aids to understanding the tapes; the jury is instructed that if the tape and transcript vary, the tape is controlling. See United States v. Turner, 528 F.2d 143, 167-68 (9th Cir.1975), cert. denied, 429 U.S. 837, 97 S.Ct. 105, 50 L.Ed.2d 103 (1976). When the tape is in a foreign language, however, such an instruction is "not only nonsensical, it has the potential for harm where the jury includes bilingual jurors." United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir.1995). We therefore have upheld a trial court's instruction that a jury is not free to disagree with a translated transcript of tape recordings. See id. To some degree, the status of translated transcripts as primary evidence helps the defendants' argument: the transcripts substitute for the tapes, and accordingly it is reasonable to presume that they will be read in open court as a tape would be played in open court, rather than being treated as ordinary documentary evidence such as a contract or insurance policy.

The district court in the present case did not treat the transcripts as ordinary documentary evidence. In response to the requests and a motion of the defendants to have the tapes played to the jury or to have...