UNITED STATES COURT OF APPEALS
Filed 8/16/96
FOR THE TENTH CIRCUIT
______
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) No. 95-2287
) (D.C. No. CR 94-726)
VALENTIN ORTIZ-TREJO, ) (Dist. of New Mexico)
)
Defendant-Appellant. )
______
ORDER AND JUDGMENT*
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Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
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After examining the briefs and the appellate record, this
panel has determined unanimously to honor the parties’ request for
a decision on the briefs without oral argument. See Fed. R. App.
P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Valentin Ortiz-Trejo (Ortiz-Trejo) appeals his conviction and
sentence following a jury trial wherein he was found guilty of
knowingly and intentionally possessing marijuana with the intent to
distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D).
On December 1, 1994, Jesus Bruno-Marquez (Bruno-Marquez) was
arrested at a United States Border Patrol checkpoint north of Las
*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of Tenth Cir. R. 36.3.
Cruces, New Mexico, based on a quantity of marijuana discovered in
the Mercury Monarch he was driving. Shortly after his arrest,
Bruno-Marquez agreed, in cooperation with law enforcement
officials, to transport the marijuana to Santa Fe, New Mexico, for
a controlled delivery.
Bruno-Marquez traveled with law enforcement officials to
Albuquerque, New Mexico, where he placed a tape-recorded phone call
to Ortiz-Trejo in Santa Fe. The conversation was conducted
entirely in Spanish and later translated and transcribed into
English. After the phone conversation, Bruno-Marquez and law
enforcement officials traveled to Santa Fe where Bruno-Marquez
agreed to meet Ortiz-Trejo at a local motel.
At the motel, Ortiz-Trejo got into the Mercury Monarch with
Bruno-Marquez and handed him $1,000 in $100 denominations for the
delivery of the vehicle. After the money was delivered, law
enforcement officers arrested Ortiz-Trejo.
On December 8, 1994, Ortiz-Trejo was indicted for knowingly
and intentionally possessing with intent to distribute less than
fifty kilograms of marijuana, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(D) and 18 U.S.C. § 2.
At trial, both the tape of the recorded conversation between
Ortiz-Trejo and Bruno-Marquez and the written translation were
admitted into evidence without objection. (Appellant’s Appendix,
Tab 5, App. 0078). The tape was then played for the jury and each
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juror received a copy of the written translation.
The jury began deliberating after lunch on April 4, 1995.
Later that afternoon, the jurors asked if they could listen to the
tape of the conversation. Although the district court expressed
some reservations, the court granted the jurors’ request and
instructed the courtroom deputy to play the tape-recorded
conversation for the jury and then remove the tape player from the
jury room. There were no objections to the arrangement.
At the end of the day, the jury foreman informed the district
court that the jury had not reached a decision and was deadlocked.
After a supplemental Allen1 instruction and brief deliberation, the
jury recessed for the day.
The following day, the jury returned and continued
deliberations. At mid-morning, the jury again requested that the
district court permit the playing of the tape-recorded
conversation. Over Ortiz-Trejo’s objection, the district court
allowed the jury to hear the tape again. The district court found
that the jury was “entitled to hear it as many times as they want
to because they can obviously review the other exhibits as many
times as they want to.” (Appellant’s Appendix, Tab 5 at 208). A
short time later, the jury returned a verdict of guilty.
On appeal, Ortiz-Trejo contends that the district court erred
in allowing the jury to rehear for a second time the tape-recorded
1
Allen v. United States, 164 U.S. 492 (1896).
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conversation between himself and Bruno-Marquez, which was conducted
in Spanish, with the English translation of the conversation which
was admitted into evidence by stipulation. He argues that the
Spanish speaking members of the jury improperly influenced the
other jurors and that the jury placed undue and improper weight on
the tape-recorded conversation, as evidenced by the guilty verdict
shortly after the jury heard the tape-recorded conversation for the
second time.
“The transmittal of exhibits to the jury is ordinarily a
matter within the discretion of the trial court and will not be
reversed in the absence of clear prejudice.” United States v. De
Hernandez, 745 F.2d 1305, 1308 (10th Cir. 1984). The tape of the
conversation and the written translation were both admitted into
evidence without objection as Government Exhibits 7 and 10,
respectively. (Appellant’s Appendix, Tab 9 at 98-100). Therefore,
we review the district court’s decision for an abuse of discretion.
Under the abuse of discretion standard, the district court’s
decision will not be disturbed unless we have a definite and firm
conviction that the district court made a clear error of judgment
or exceeded the bounds of permissible choice in the circumstances.
Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994).
After careful consideration of the record, we hold that the
district court did not abuse its discretion in permitting the jury
to hear the tape-recorded conversation a second time. It is true
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that the Spanish speaking jurors had the unique advantage of
understanding the conversation in Spanish and the opportunity to
relay and interpret the conversation during deliberation. However,
each juror had a transcript of the conversation in English which
could be examined.
Individual jurors bring different skills and backgrounds to
the deliberations of juries and, without more, prejudice should not
be assumed. See United States v. Rivera, 778 F.2d 591, 600 (10th
Cir. 1985) (no prejudice presumed in admission of tapes in Spanish
and transcripts in English), cert. denied, 475 U.S. 1068 (1986).
“We ‘must not permit the integrity of the jury to be assailed by
mere suspicion and surmise; it is presumed that the jury will be
true to their oath and conscientiously observe the instructions and
admonitions of the court.’” Id. (quoting Baker v. Hudspeth, 129
F.2d 779, 782 (10th Cir.), cert. denied, 317 U.S. 681 (1942)).
Here, the recorded tape conversation and the written translation
thereof, Exhibits 7 and 10, respectively, were admitted into
evidence without objection. This court has held that the trial
court did not abuse its discretion even in permitting the jury to
view unadmitted evidence. See United States v. Scott, 37 F.3d
1564, 1577 (10th Cir. 1994), cert. denied, ___ U.S. ___ (1995)
(court did not err in permitting jury to have copy of the
indictment in a complex tax fraud conspiracy case, particularly
considering the number of overt acts, after instructing that the
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indictment was only an accusation and not evidence); Johnston v.
Makowski, 823 F.2d 387, 390-91 (10th Cir. 1987), cert. denied, 484
U.S. 1026 (1988) (defendant’s due process rights were not violated
by the presence of an unadmitted police report referring to an
unrelated attempted rape charge where jury did not consider the
report during the guilt phase).
AFFIRMED.
Entered for the Court:
James E. Barrett,
Senior United States
Circuit Judge
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