U.S. v. Llinas, 79-5095

• Decision Date: 26 September 1979
• Docket Number: No. 79-5095,79-5095
• Parties: UNITED STATES of America, Appellee, v. Robert Joseph LLINAS, Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 506

603 F.2d 506

UNITED STATES of America, Appellee, v. Robert Joseph LLINAS, Appellant.

No. 79-5095

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

Sept. 26, 1979.

Larry G. Turner, Gainesville, Fla., for appellant.

Jack V. Eskenazi, U.S. Atty., Alan L. Weisberg, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before AINSWORTH, GODBOLD and VANCE, Circuit Judges.

AINSWORTH, Circuit Judge:

Appellant Robert Joseph Llinas was convicted after a jury trial of conspiracy to import cocaine into the United States and conspiracy to possess cocaine with intent to distribute it in violation of 21 U.S.C. §§ 963, 846. At trial, the principal incriminating evidence against appellant consisted of two tape recordings of conversations between appellant and Cesar Riascos-Velasquez, a native of Colombia. Llinas contends the recordings should have been excluded from evidence (1) because they were made without the valid consent of Riascos, and (2) because they contain inaudible portions rendering them fatally unreliable.

Appellant's claims of error are without merit and we affirm.

I.

Llinas first contends that his incriminating taped conversations with Riascos should be excluded from evidence as Riascos did not voluntarily consent to the recording. 18 U.S.C. § 2511(2)(c) provides that wire or oral communications may be intercepted without a warrant where "one of the parties to the communication has given prior consent to such interception." The tape was properly admitted into evidence, therefore, if Riascos consented to the surveillance and recording of the conversation.

Evidence introduced at trial established that Riascos was arrested at the Miami International Airport by Federal Drug Enforcement Administration (DEA) agents after he claimed a package which customs officials had determined contained a large quantity of cocaine. Immediately after his arrest, Riascos was given Miranda ¹ warnings in both Spanish and English. He did not request the presence of an attorney.

Riascos was advised by DEA agents that any cooperation by him with government investigators would be made known to the U.S. Attorney and the courts. Immediately thereafter, Riascos explained his and Llinas' involvement in the cocaine conspiracy. Riascos waived in writing his right to be promptly brought before a U.S. magistrate, and agreed to make a controlled delivery of the cocaine to Llinas in Gainesville, Florida.

Riascos was taken by car to Gainesville, where he telephoned Llinas from his hotel room. Llinas arrived sometime later, and was arrested as he left the hotel carrying a quantity of cocaine. The telephone and hotel room conversations, recorded by DEA agents, constitute the principal evidence against Llinas.

Llinas, both in a pretrial suppression hearing and now on appeal, argues that the tapes of his conversations with Riascos are inadmissible as Riascos did not voluntarily consent to the electronic recording. In essence, appellant contends that the inherently coercive nature of arrest and interrogation, when combined with the fact that Riascos was an alien unaccustomed to the U. S. legal system, establishes lack of consent as a matter of law.

After a lengthy pretrial suppression hearing, the U. S. magistrate recommended that the District Court find the recordings were made voluntarily. ² The District Court adopted the magistrate's findings. The task of this Court is limited in these circumstances to determining whether "there was sufficient evidence on the record to justify the District Court's conclusion that (Riascos) voluntarily consented to the government's interception of the conversation." United States v. Rangel, 5 Cir., 1974, 488 F.2d 871, 872. Furthermore, we must accept the trial court's findings of fact on a motion to suppress unless they are clearly erroneous. United States v. Juarez, 5 Cir., 1978, 573 F.2d 267, 273. See also United States v. Griffin, 5 Cir., 1977, 555 F.2d 1323, 1324.

There is sufficient evidence of record here to justify the conclusion that Riascos consented to the interception of his conversations with Llinas. The record contains no evidence of undue pressure, threats, or inducements. Riascos was advised of his rights and options in both English and Spanish. He had at least twelve hours to ponder his decision to cooperate with the DEA agents. As for the DEA agents' promises to make Riascos' cooperation known to the U.S. attorney and the court, similar promises were held not to be coercion in United States v. Juarez, supra, 573 F.2d at 278. Raised expectations and hopes for leniency do not amount to coercion. Id.

II.

Llinas next contends that inaudible portions of the tape recording of the conversation in the hotel room rendered the tape so unreliable as to be inadmissible at trial. Furthermore, because the original conversation was in Spanish, Llinas contends that the jury's use of an English transcription constitutes reversible error as the translation was inaccurate and the jury, most of the members of which were not Spanish-speaking, could not reconcile alleged discrepancies between the transcription and the recording itself.

Petitioner's argument regarding the inaudibility of the tape is without merit. Tape recordings which are only partially unintelligible are admissible unless those portions are so substantial as to render the recording as a whole untrustworthy. United States v. Wilson, 5 Cir., 1978, 578 F.2d 67, 69. The determination as to the trustworthiness of a tape recording is left to the sound discretion of the trial judge. United States v. Avila, 5 Cir., 1971, 443 F.2d 792, 795, Cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258. See also United States v. Wilson, supra, 578 F.2d at 69; United States v. Onori, 5 Cir., 1976, 535 F.2d 938, 946.

Notwithstanding the inaudible portions of the recording, the transcript as a whole clearly reveals a highly incriminating conversation of a conspiratorial nature. During the conversation appellant sought information from Riascos regarding the condition of the package of cocaine when Riascos picked it up at the airport in Miami, the possibility that customs agents may have opened the package, messages given by the Colombians who sent the cocaine, and a strike by Colombian customs officers. At other times during the conversation appellant expressed concern about the danger of conducting narcotics transactions over the phone, the difficulties he was experiencing paying his Colombian connections for the cocaine, the fact that he did not have much time to talk, and the existence of 180 federal agents in the Gainesville area. The flow of the conversation is not difficult to follow, and it is quite obvious that the conversation is substantially intelligible. The trial court did not err in admitting the tape. United States v. Wilson, supra, 578 F.2d at 69.

Petitioner's final arguments, that the English translation of the tape was inaccurate and that the jury should not have relied on an English translation but on the original tape itself, are also without merit.

If the government's translation was inaccurate, it was petitioner's burden to challenge its accuracy by presenting another translation, so that the jury could choose which version to believe. United States v. Onori, 5 Cir., 1976, 535 F.2d 938, 948. As we recently stated in United States v. Wilson, supra, 578 F.2d...