U.S. v. Rena, 91-2373

• Decision Date: 12 January 1993
• Docket Number: No. 91-2373,91-2373
• Citation: 981 F.2d 765
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mike Tagle RENA and Mike Rena, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 765

981 F.2d 765

UNITED STATES of America, Plaintiff-Appellee, v. Mike Tagle RENA and Mike Rena, Jr., Defendants-Appellants.

No. 91-2373.

United States Court of Appeals Fifth Circuit.

Jan. 12, 1993.

Ralph R. Martinez, Houston, TX (court-appointed), for Mike Tagle Rena.

Armando P. Martinez, Houston, TX (court-appointed), for Rena, Jr.

Kathlyn G. Snyder, Paula Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, TX, for U.S.

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

Before KING, JOHNSON and DUHE, Circuit Judges.

JOHNSON, Circuit Judge:

During the trial of defendants Mike Tagle Rena (Rena, Sr.) and his son Mike Rena, Jr. (Rena, Jr.), the jurors were allowed to review transcripts of recorded telephone conversations which included the impressions of transcribers. Both defendants argue that the district court committed reversible error in allowing the jurors to see that extraneous material. Rena, Jr. further claims that there was insufficient evidence to convict him and in the alternative the conspiracies alleged in two counts of the indictment were actually one ongoing conspiracy.

I. Facts and Procedural History

Rena, Sr. and Rena, Jr. were indicted with twelve other individuals for their involvement in the distribution of marijuana. The Narcotics Service of the Texas Department of Public Safety (DPS) obtained authorization to place a wire tap on the home telephone lines of Rena, Sr. and Rena, Jr. and on the line of Rena and Sons Paint and Body Shop, an automotive shop owned by Rena, Sr. The intercepts began on February 19, 1990 and ended on March 17, 1990. Based upon those intercepts and other information, Rena, Sr. was charged with one count of engaging in a continuing criminal enterprise, three counts of conspiracy to possess with intent to distribute marijuana, and three counts of possession with the intent to distribute marijuana. Rena, Jr. was charged with three counts of conspiracy to possess with intent to distribute marijuana and two counts of possession with intent to distribute marijuana.

During the trial, the court allowed the parties to play the tapes for the jury. The court also allowed the jury to review transcripts written by DPS personnel, because a substantial number of the conversations on the tapes were in Spanish. ¹ An official court interpreter had reviewed each of the tapes and transcripts and had either determined that the transcripts were acceptable or had corrected any mistakes thereon. The transcripts also contained synopses of the conversations. These synopses, which were always on the first page, were written by the transcriber. Some of the synopses and the transcripts contained parenthetical interpretations by the transcriber. ² The court informed the jurors before the first tape was played and before they received the first transcript that the tapes, not the transcripts, were evidence. ³ The court so instructed the jurors at least twelve times throughout the four day period during which the Government offered the tapes into evidence.

The jury found Rena, Sr. guilty of each of the seven counts and the court sentenced him to imprisonment for two hundred ninety-three months and a five year term of supervised release. The court dismissed the possession charges against Rena, Jr. based upon the lack of evidence of such possession; however, the jury found him guilty of the conspiracy counts. The court sentenced Rena, Jr. to incarceration for life and a five year term of supervised release due, in part, to his four previous convictions.

Both Renas claim that allowing the jurors to review the transcripts was reversible error; they therefore ask the Court to reverse and remand for a new trial. Rena, Jr. further claims that there was insufficient evidence to convict him of any conspiracy. In the alternative, he argues that two of the conspiracies charged were only one conspiracy.

II. Discussion

A. Transcripts

Whether the jury should have the use of transcripts is a matter left to the sound discretion of the trial judge. United States v. Larson, 722 F.2d 139, 144 (5th Cir.1983), cert. denied, 466 U.S. 907, 104 S.Ct. 1688, 80 L.Ed.2d 161 (1984); United States v. Onori, 535 F.2d 938, 947 (5th Cir.1976). Thus, in the usual case, the Court will not reverse absent an abuse of discretion. However, this is not the usual case, for the Renas failed to preserve any error with respect to the extraneous comments added in the transcripts. ⁴ The Court must therefore apply the plain error standard of review. FED.R.CRIM.P. 52(b); United States v. Navejar, 963 F.2d 732 (5th Cir.1992). Plain error occurs when the error is "so obvious and substantial that failure to notice and correct it would affect the fairness, integrity, or public reputation of judicial proceedings." Id. (quoting United States v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2032, 114 L.Ed.2d 117 (1991)).

In United States v. Onori, the Court determined that transcripts are sometimes useful for helping juries to understand evidence of taped conversations. 535 F.2d at 947. The Court concluded that when parties do not agree upon the accuracy of a transcript, the trial court may explain to the jury that a dispute exists about the proper translation and should allow each party to present evidence of its proffered version. Id. at 948-49. Upon a party's request, the court should also provide limiting instructions to inform the jury that the transcript is "just another piece of evidence subject to objections, that it may have to be evaluated for accuracy, and that the jury need not accept any proffered transcript as accurate." Id. at 949. The Court found that the instructions provided in United States v. Larson "comported precisely with our admonishment in Onori." ⁵ 722 F.2d at 144. Certainly, the court's instructions to the jury in this case were just as sufficient. ⁶ However, unlike the transcripts in Larson and Onori, the transcripts in this case not only contained alleged variances from the tape, but they also contained the transcribers' interpretations of some of the words used in the conversations. Also sixty of the eighty transcripts contained short, one-paragraph synopses of the recorded conversations. ⁷

Some of the interpretations had the potential of being extremely prejudicial, ⁸ and they all could have easily been removed prior to the jury's review thereof. ⁹ Thus, the court clearly abused his discretion in allowing the Government to provide such extraneous material. However, Government witnesses provided basically the same information while testifying. Thus, the error, though obvious, was not substantial. It therefore failed to result in the manifest injustice which compels reversal under the plain error standard of review.

More importantly, the jurors themselves could have broken the code for the majority of terms which were improperly interpreted based upon other evidence which the Government presented. For example, with respect to the word "part," Rena, Sr. telephoned an individual, Pop, in Maryland on the morning of March 3, 1990 to inform him that his nephew, Joe, was driving to that location and that he would have 125 or 126. After informing Pop of the price for these items, Pop complained that they were too expensive. Fewer than five minutes after calling Pop, Rena, Sr. talked with another person and informed him that Pop was "crying because of the prices of the car parts." DPS Troopers testified that on the afternoon of March 3, they stopped Rena, Sr.'s nephew, Joe Rena, driving north of Houston, with 126 pounds of marijuana. Based upon this undisputed evidence, a reasonable juror could have easily determined that a code word for marijuana was "parts." ¹⁰

Because Government witnesses explained their interpretations of key words during the trial and because we believe that the jurors could have determined the meaning of a number of the key words even without the aid of Government witnesses, we conclude that submitting the extraneous comments with the transcripts, though erroneous, did not affect the substantial rights of either Rena and was therefore harmless error. See FED.R.CRIM.P. 52(a).

B. One or Two Conspiracies?

Rena, Jr. argues that the conspiracies alleged in Counts 15 and 17 were, in fact, one conspiracy. If there is only one agreement to carry out the overall objective, even though various parties are engaged in different functions, there is only one conspiracy. United States v. Lokey, 945 F.2d 825, 831 (5th Cir.1991). However, if there is no overall goal or purpose more than one conspiracy may exist. United States v. Perez, 489 F.2d 51, 62 (5th Cir.1973); cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). This Court has set out five factors which aid in determining whether there is more than one agreement: 1) The time period alleged, 2) The co-conspirators involved, 3) The statutory offenses charged, 4) the overt acts or description of the offense charged which indicates the nature and scope of the activity which the Government alleged was illegal, and 5) the location of the events which allegedly took place. United States v. Nichols, 741 F.2d 767, 771 (5th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1186, 84 L.Ed.2d 333 (1985) (quoting United States v. Marable, 578 F.2d 151, 154-56 (5th Cir.1991)).

Evaluating these factors in light of the facts of this case reveals that counts 15 and 17 involved the same conspiracy. The indictments were virtually the same. ¹¹ Indeed the only difference between the charges was the time period. Count 17, while including the same period alleged in Count 15, merely extended that period by twelve days. The indictment alleged and the evidence showed that basically the same individuals were involved in the drug trafficking. Each count charged the Rena, Jr. with possessing with intent to distribute 50 kilograms of marijuana, and the evidence was clear...