U.S. v. Rivera-Rosario

• Decision Date: 07 August 2002
• Docket Number: No. 00-1575.,No. 00-1700.,No. 00-1577.,No. 00-1546.,No. 00-1545.,00-1545.,00-1577.,00-1546.,00-1700.,00-1575.
• Citation: 300 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Luis RIVERA-ROSARIO, a/k/a Negri, Carlos Collazo-Arroyo, a/k/a Carli, Federico Naranjo-Rosa, a/k/a Papo, JesÚs Toro-Santiago, a/k/a Chu, Orlando HernÁndez, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 1

300 F.3d 1

UNITED STATES of America, Appellee, v. Luis RIVERA-ROSARIO, a/k/a Negri, Carlos Collazo-Arroyo, a/k/a Carli, Federico Naranjo-Rosa, a/k/a Papo, JesÚs Toro-Santiago, a/k/a Chu, Orlando HernÁndez, Defendants, Appellants.

No. 00-1545.

No. 00-1577.

No. 00-1546.

No. 00-1700.

No. 00-1575.

United States Court of Appeals, First Circuit.

Heard March 7, 2002.

Decided August 7, 2002.

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Joseph Waldbaum, for appellant Rivera-Rosario. Raymond Rivera-Esteves, for appellant Collazo-Arroyo. Linda Backiel, for appellant Naranjo-Rosa. Randy Olen, with whom Bevilacqua and Cicilline, was on brief for appellant Toro-Santiago. Jane Elizabeth Lee, for appellant Hernández.

Mark Irish, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant United States Attorney, Chief, Criminal Division, and Thomas F. Klumper, Assistant United States Attorney, were on brief for appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.

TORRUELLA, Circuit Judge.

The facts of this appeal are so unique that they could originate only in the District of Puerto Rico, the sole district within the American federal judiciary where every judge and almost every juror is fluent in English and Spanish.

Defendants-appellants were convicted of conspiracy to possess with intent to distribute marijuana, cocaine, and heroin. On appeal, defendants collectively and separately raise a host of challenges to their convictions and sentences. After reviewing the issues presented, we find that the district court erred in allowing evidence to be presented to the jury in Spanish without an English translation. Because we conclude that this error undermined the right to meaningful appellate review for some of the defendants, we reverse, in part, affirm, in part, and remand the case for action consistent with this opinion.

FACTUAL BACKGROUND

Acting upon a wiretap order, Federal Bureau of Investigation ("FBI") agents intercepted and recorded numerous telephone conversations among the defendants. The conversations were in Spanish and contained references to tires, car jacks, spurs, tennis shoes, windows, cakes, and ceramic dogs. Believing that these terms were coded references to drugs, the government sought to indict defendants Luis Rivera-Rosario, Carlos Collazo-Arroyo, Orlando Hernández, Jesús Toro-Santiago, and Federico Naranjo-Rosa. On December 10, 1997, a federal grand jury indicted the defendants on charges of conspiring to possess with intent to distribute multi-kilogram quantities of drugs, in violation of 21 U.S.C. § 846.

At trial, the prosecution's evidence against the defendants consisted primarily, though not exclusively, of 180 audiotapes, which contain the intercepted conversations. Before introducing these recordings in evidence, the government provided the district court and defense counsel with a Spanish transcript of the tapes and an English translation of the Spanish transcript. The court then asked the jury whether it preferred to listen to the tapes while reading the Spanish transcript or the English translation. The jury responded that it wanted to review the English translation. At that moment, the prosecution informed the court that there were not enough English translations for all of the jurors. In light of this shortage, the court instructed the government to give each juror a Spanish transcript and to distribute a couple of copies of the English translation to the jury as a whole.

Before this instruction could be implemented, however, defense counsel objected on the ground that the English translation contained so many inaccuracies that the jury should not be allowed to see it.¹ After ascertaining that all of the jurors spoke fluent Spanish, the court ruled that only the Spanish transcript would be made available to the jury; the English translation was thus cast aside.

For the next four days of trial, the jury heard the Spanish tapes and read the Spanish transcript. As the tapes played in open court, the court interpreter did not translate any of the recordings. Neither the Spanish transcript nor the English translation was marked as an exhibit or made part of the record.

In addition to the tapes, the government relied on the testimony of four witnesses to meet its burden of proof. FBI Special Agent Carlos Cases testified about the defendants' use of coded references to drugs in their taped conversations. Next, cooperating witnesses Daniel Sánchez-Ortiz and Alberto Negrón-Constantino testified that they purchased drugs from Toro-Santiago in 1995. Finally, FBI Special Agent Harold Clouse stated that notebooks seized from Toro-Santiago's residence may contain references to drug activity.

The government also introduced several pieces of physical evidence inculpating the defendants, including: (1) drug paraphernalia, such as sifters and an electronic scale, seized from Rivera-Rosario's bedroom; (2) approximately $8,000 in cash found in Toro-Santiago's house; and (3) notebooks from Toro-Santiago's residence with notations that allegedly related to illegal drug activity.²

On October 26, 1999, the jury convicted the defendants of conspiracy to possess with intent to distribute illegal narcotics. Seeking to reverse their convictions and sentences, the defendants filed the instant appeal.

DISCUSSION

I.

It is clear, to the point of perfect transparency, that federal court proceedings must be conducted in English. Even if this practice were not intuitively obvious in Puerto Rico, Congress enacted section 42 of the Jones Act, which requires that "[a]ll pleadings and proceedings in the United States District Court for the District of Puerto Rico ... be conducted in the English language." 48 U.S.C. § 864 ("Jones Act" or "English language requirement") (emphasis added); see also United States v. Dejesús Boria, 518 F.2d 368, 370-71 (1st Cir.1975) (upholding the constitutionality of the English language requirement). This requirement is significant not only because it guarantees that the District of Puerto Rico remains "a viable part of the federal judicial system," United States v. Valentine, 288 F.Supp. 957, 964 (D.P.R.1968), but also because it allows this Court to review evidence in the same language in which it was presented to the district court.

The parties do not dispute that a violation of the Jones Act occurred. Indeed, it would be impossible to contest the issue: 180 tapes were played in Spanish throughout four days of trial without a single translation. Though we understand, and sympathize with, the district court's desire not to delay the trial by waiting for the parties to agree on an acceptable translation, the court's ruling ran afoul of the English language requirement. We thus direct our attention to the more contentious and perplexing issue of how and when to remedy a violation of the English language requirement. This issue does not simply involve the correction of a technical violation; rather, it implicates the more troubling question of how to conduct meaningful appellate review when substantial portions of the record are in a foreign language.

In analyzing this matter, we are left without a guiding star by which to steer our course. The statute does not provide a remedy for violations of its mandate; the legislative history furnishes no guidance on what remedial framework should be employed; and the issue is unprecedented in caselaw. Sensing our predicament, the parties offer several competing frameworks to address the present violation.

The government argues that we should rely on the analytical framework of the plain error doctrine to dispose of defendants' claim because defendants failed to raise it in district court.³ Ordinarily, before an appellate court can correct an error not raised at trial, the defendant must demonstrate that: (1) there was error; (2) the error was plain; (3) the error affected the defendant's substantial rights; and (4) the error adversely impacted the fairness, integrity, or public reputation of the judicial proceeding. See United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Since the defendants failed to raise their Jones Act claim below, the government concludes that the defendants must now satisfy the rigors of plain error review to obtain a reversal of their convictions on this issue.

Though we applaud the conscientious attorney who objects to the presentation of foreign language evidence without translation, we find that it is the independent duty of the district court to make sure that "[a]ll pleadings and proceedings ... be conducted in the English language." 48 U.S.C. § 864.⁴ As such, we relieve the parties of their usual duty to contemporaneously object.

We impose this independent duty on the district court for three important reasons. First, the Court Reporter Act, 28 U.S.C. § 753(b), places a similar independent duty on the judiciary. The Court Reporter Act requires that a reporter "record verbatim or by mechanical means ... all proceedings in criminal cases held in open court." Id. All of the circuit courts that have examined the Court Reporter Act have held that it is the responsibility of the court, not the parties, to enforce the statute. See United States v. Nolan, 910 F.2d 1553, 1560 (7th Cir.1990) ("The duty to comply with § 753(b) lies with the court, not the parties."); United States v. Gallo, 763 F.2d 1504, 1530 (6th Cir.1985) (ruling that "it is the duty of the court, not the attorneys, to meet the Act's requirements" (emphasis in original)); United States v. Upshaw, 448 F.2d 1218, 1224 n. 6 (5th Cir.1971) (same); Edwards v. United States, 374 F.2d 24, 26 n. 2 (10th Cir.1967) (same). Thus, a party on appeal is not subjected to plain error review for failing to object below to a violation of the Court Reporter Act. See United States v. Brand, 80 F.3d 560, 563 (1st Cir....