US v. Urena

Decision Date20 August 1993
Docket NumberCrim. A. No. 93-10011-01 to 93-10011-03.
PartiesUNITED STATES of America, Plaintiff, v. Rafael A. URENA, Lourdes Collington, and Gwendolyn Davis, Defendants.
CourtU.S. District Court — District of Kansas

Kim Fowler, Asst. U.S. Atty., Wichita, KS, for plaintiff.

Kenneth L. Weltz, Wichita, KS, for defendants.

MEMORANDUM AND ORDER

BELOT, District Judge.

This matter comes before the court on Urena's motion for judgment of acquittal, or in the alternative a new trial, pursuant to Fed.R.Crim.P. 29(c) and 33. (Doc. 68) Urena was convicted after a jury trial of conspiring to distribute cocaine, possession of cocaine with intent to distribute cocaine, and travel in interstate commerce with intent to commit an unlawful activity in violation of 21 U.S.C. § 841(a), 21 U.S.C. § 846, 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 1952(a)(3).

Urena makes three arguments in support of his motion. First, he challenges the sufficiency of the evidence supporting the conviction. Second, he contends the court erred in admitting hearsay statements of his co-conspirators, Lourdes Collington and Raymond, into evidence. Third, he contends the court-appointed interpreter was not competent to serve in the trial.

In ruling on a motion for acquittal made at the close of all the evidence,1 the court must consider all direct and circumstantial evidence that was presented in this case and the inferences that may reasonably be drawn from that evidence in the light most favorable to the government. United States v. Young, 954 F.2d 614, 616 (10th Cir.1992). In its case-in-chief, the government presented the testimony of Gwendolyn Davis, who identified Urena as a member of the conspiracy to distribute cocaine. Davis testified that she was introduced to Urena by Lourdes Collington, a co-conspirator, in January, 1993, in New York City. She discussed with Collington and Urena the possibility of selling cocaine in Wichita. After picking up cocaine at Urena's apartment, Davis travelled to Wichita. Urena came to Wichita shortly thereafter and moved into a residence at 823 South Belmont. Davis testified that she and Urena went to the residence of Wilbert Shaw on two separate occasions, where Urena delivered cocaine in exchange for money.

Detective Johnny Greene of the Wichita police department also testified in the government's case-in-chief. He executed a search warrant at the residence at 823 South Belmont, which turned up crack cocaine, large amounts of cash, and other drug paraphernalia such as scales. The detective also seized some phone bills that listed phone calls to the New York number given by Urena to the detective. One call was made approximately two weeks prior to Davis' trip to New York.

Urena, in his case, testified in substance that he did not commit the acts charged. Some of his testimony is detailed, infra, and will not be summarized here. He also offered what amounted to character testimony.

Urena argues, as he did at trial, that Davis is an unreliable witness because she is a convicted felon, a prostitute who runs an escort service, and also received favorable treatment from the government in return for her testimony in this case. If the court were to accept Urena's argument, it would seriously undermine the government's efforts to apprehend and prosecute narcotics crimes. It is not uncommon for the government to utilize the services of confidential informants to ferret out criminal activity. In fact, without objection by Urena, the court expressly instructed the jury that it was permissible for the government to employ undercover strategies involving artifice and trickery to gain the confidence of a narcotics suspect. (Jury Instruction No. 38) It is common knowledge that confidential informants used by the government in narcotics cases often have less than pristine reputations. This fact does not necessarily render them unreliable witnesses. The court recognized the dangers inherent in Davis' testimony and instructed the jury that the testimony of a witness who testifies against a defendant for immunity from punishment, or for personal advantage or vindication, must be weighed with greater care than the testimony of an ordinary witness. (Jury Instruction No. 35) Urena had a full opportunity to cross-examine Davis and cast doubt on her motive and credibility.

In the court's view, there was more than sufficient evidence from which a reasonable juror could reach the conclusion that Urena committed the offenses of which he stands convicted. The motion for judgment of acquittal is denied.

Urena alternatively seeks a new trial. The court may grant a motion for new trial "if required in the interest of justice." Fed. R.Crim.P. 33. "A motion for new trial `is not regarded with favor and is granted only with great caution, being addressed to the sound discretion of the trial court.'" United States v. Page, 828 F.2d 1476, 1478 (10th Cir.), cert. denied, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987) (quoting United States v. Allen, 554 F.2d 398, 403 (10th Cir.), cert. denied, 434 U.S. 836, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977)).

Urena argues the court erred in admitting hearsay into evidence when it allowed Davis to testify about statements made by Lourdes Collington and Raymond to corroborate the defendant's agreement to distribute cocaine. Urena contends the foundational requirements of Fed.R.Evid. 801(d)(2)(E) were not satisfied.

Co-conspirator's statements that are admissible under Rule 801(d)(2)(E) are not hearsay. In order for such statements to be admissible, there must be evidence of a conspiracy involving the declarant and the defendant against whom the declaration is offered, and that the statement was made in the course of and in furtherance of the conspiracy. United States v. Caro, 965 F.2d 1548, 1557 (10th Cir.1992).2 In determining whether these requirements are met, the court is not restricted to considering only evidence independent of the co-conspirator's testimony, but can also consider the hearsay statements sought to be admitted. United States v. Johnson, 911 F.2d 1394, 1403 (10th Cir.1990), cert. denied 498 U.S. 1050, 111 S.Ct. 761, 112 L.Ed.2d 781 (1991). The preliminary facts necessary for the admission of co-conspirator hearsay (existence of a conspiracy involving the declarant and that the statement was made during the course and in furtherance of the conspiracy) must be proved by a preponderance of the evidence. United States v. Perez, 989 F.2d 1574, 1577 (10th Cir.1993) (en banc).

The testimony of Davis alone is sufficient to satisfy the requirements of Rule 801(d)(2)(E). As the Supreme Court recognized in Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), "a co-conspirator's statements can themselves be probative of the existence of a conspiracy and the participation of both the defendant and the declarant in the conspiracy." Id. at 180, 107 S.Ct. at 2781. Davis testified as to her own participation in the drug conspiracy. She also identified Collington and Raymond as members of the conspiracy and described their roles. She described her visit to New York in January, 1993. While in New York, she was introduced to Urena by Collington. During the trip, she had conversations with Urena, Raymond, and Collington about the conspirators' plan to distribute cocaine in Wichita, Kansas. Cf. United States v. Cresta, 825 F.2d 538, 550-51 (1st Cir.1987), cert. denied 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988) (government informant testifies that co-conspirator told him that defendant was an agent for marijuana buyers and a member of the conspiracy). Davis testified that Urena was a member of the conspiracy and not an innocent bystander, as Urena claimed. At one point, she even went to Urena's New York apartment to pick up cocaine. The statements at issue related to the plan to distribute cocaine in Wichita and were clearly in furtherance of the conspiracy. See United States v. Johnson, 925 F.2d 1115, 1117 (8th Cir.1991).

In addition, circumstantial evidence connects Urena to the conspiracy. The Wichita residence (Davis' residence) he was living in was searched and cocaine and drug paraphernalia was discovered. Phone records documenting calls from the residence to Urena's New York apartment were also discovered. While this evidence is capable of innocent interpretation, it is also consistent with Urena's involvement in the conspiracy.

The court finds the admission of the co-conspirator's statements under Rule 801(d)(2)(E) was not erroneous.

Urena argues the court-appointed interpreter was incompetent and should have been replaced. In support of his contention, Urena has submitted an affidavit from his own interpreter, LuAnn Jensen, listing certain errors the court-appointed interpreter allegedly made. The government responds that while Urena made a general objection to the interpreter at the beginning of his testimony, he failed to make specific objections to inaccuracies in the translation at the time they arose, rendering his present objection unreviewable. Morales-Gomez v. United States, 371 F.2d 432, 433 (10th Cir.1967). Alternatively, the government contends that even if the court accepts as true the errors alleged in Jensen's affidavit, the errors were not material to the outcome of the trial.

As a general rule, the defendant is entitled to a word for word translation of his testimony. United States v. Huang, 960 F.2d 1128, 1135 (2nd Cir.1992). However, deviations from that standard do not constitute reversible error unless they render the trial fundamentally unfair. United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir.), cert. denied 498 U.S. 986, 111 S.Ct. 523, 112 L.Ed.2d 534 (1990).

In the case at bar, it is impossible for the court to ascertain whether the translation was accurate by reviewing the transcript of Urena's testimony. It was incumbent upon Urena to make a contemporaneous objection3 if his testimony was being...

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2 cases
  • US v. Smith, Crim. A. No. 93-10092-01
    • United States
    • U.S. District Court — District of Kansas
    • July 22, 1994
    ...and the inferences that may reasonably be drawn from that evidence in the light most favorable to the government." United States v. Urena, 834 F.Supp. 1282, 1284 (D.Kan.1993), aff'd, 27 F.3d 1487 (10th Cir.1994) (citing United States v. Young, 954 F.2d 614, 616 (10th Cir.1992)); United Stat......
  • U.S. v. Urena, 93-3313
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 22, 1994
    ...Defendant also contends that the district court improperly denied his motion for judgment of acquittal under Fed.R.Crim.P. 29(a), 834 F.Supp. 1282. He bases this contention on the argument that the district court improperly admitted certain testimony of Gwendolyn Davis as coconspirator stat......

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