United States v. Gonzalez-Maldonado

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1120

UNITED STATES,

Appellee,

v.

HONORIO GONZALEZ-MALDONADO,
a/k/a NORI, a/k/a JOHN DOE 94 CR360-3,
a/k/a ONORIO GONZALEZ-MALDANDO,

Defendant - Appellant.

No. 96-1296

UNITED STATES,

Appellee,

v.

GERMAN MONTALVO, a/k/a ITO,
a/k/a JOHN DOE 94 CR360-2,

Defendant - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. H ctor M. Laffitte, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Selya, Circuit Judge.

Jos A. Pag n-Nieves, by appointment of the Court, with whom

Jos A. Pag n Nieves Law Offices, was on brief for appellant

Honorio Gonz lez-Maldonado.
Judith H. Mizner, with whom Ricardo R. Pesquera-Annexy was

on brief for appellant Germ n Montalvo.
Lena Watkins, Attorney, with whom John C. Keeney, Acting

Assistant Attorney General, Theresa M.B. Van Vliet, Chief,

Criminal Division, Narcotic and Dangerous Drug Section, U.S.
Department of Justice, and Guillermo Gil, Acting United States

Attorney, were on brief for appellee.

May 30, 1997

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TORRUELLA, Chief Judge. Appellants Honorio Gonz lez-
TORRUELLA, Chief Judge.

Maldonado ("Gonz lez-Maldonado") and German Montalvo ("Montalvo")

appeal their convictions on charges of money laundering in

violation of 18 U.S.C. 2, 1956(a)(1)(A)(i) and

1956(a)(1)(B)(i) and conspiracy to possess with intent to

distribute five or more kilograms of cocaine, in violation of 21

U.S.C. 846. For the reasons stated herein we vacate their

convictions and remand to the district court.

On appeal from a conviction, we review the facts in the

light most favorable to the verdict. See United States v.

Staula, 80 F.3d 596, 599 (1st Cir.), cert. denied, 117 S. Ct. 156

(1996). On that basis, the jury could have found the following

facts.

In the spring of 1993, the FBI began a money laundering

investigation. An undercover FBI agent, Agent Mart n Su rez, and

an informant infiltrated a money laundering organization that

worked under the direction of a man known as "Honcho." Honcho

communicated to Agent Su rez and the informant that they would be

contacted through their pager, by a person using the code "Romero

55." On May 24, 1994, Agent Su rez received a page from Romero

55 and contacted him by phone. Agent Su rez, the informant, and

Romero 55 -- who was later identified as Julio Robles-Torres

("Robles") -- arranged to meet the following day, at which time

Romero 55 delivered approximately $600,000 to Agent Su rez and

the informant. The conversation that took place at the meeting

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was recorded, although there were periods when the recorder

malfunctioned.

At trial, the court admitted the taped conversation

into evidence over the objection of defense counsel. Agent

Su rez testified that during the interrupted portion of the tape,

Robles indicated that he had started an individual named "Papo"

in "this business" and that Papo had made six million dollars.

Agent Su rez testified that, in the context of the conversation,

he interpreted "this business" to mean the drug business. The

exchange between Agent Su rez and government counsel went as

follows:

Agent Su rez: I recall that he had
mentioned that he had started Papo in
this business. He had -- also mentioned
that Papo was in the car repair business.

Government: Okay. When you say that he
started -- he, Robles, had started Papo
in that business, what business is he
talking about?

Agent Su rez: In the drug business.

Tr. 2 at 278.

During the taped conversation, Robles also stated that

he had given a lottery ticket in the amount of $250,000 to a

friend of Papo. Agent Su rez testified that drug smugglers buy

winning lottery tickets in order to launder money. There was no

mention of Montalvo or Gonz lez-Maldonado during the taped

conversation.

Based on the delivery of $600,000 and the conversation

between Agent Su rez and Robles, the government obtained a court

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order authorizing the interception of communications on Robles'

cellular phone. At trial, the government introduced more than

sixty of these intercepted calls. The government states that in

fifteen of those calls, appellant Montalvo, identified as "Ito,"

spoke with Robles; and in ten calls, Gonz lez-Maldonado,

identified as "Nori," spoke with Robles.

On June 27, 1994, FBI Special Agent Daniel Gonz lez

intercepted a conversation between Robles and Papo. During that

conversation, Robles and Papo referred to "tickets." Agent

Gonz lez, over objection, testified that the word "ticket"

referred to money. Neither appellant participated in or was

mentioned during the call.

On June 28, 1994, six conversations were intercepted by

police. The jury could have concluded that appellant Montalvo

participated in one of these calls. The first call was to

appellant Gonz lez-Maldonado at his store, Mazda Fever.

Gonz lez-Maldonado indicated that he had four tickets, and Robles

said that they could combine their tickets.

Based on these calls, another FBI Special Agent,

Michael Plichta, set up surveillance at Mazda Fever. He observed

Robles arrive in a gray Volvo around 4:00 p.m., on June 28, meet

briefly with an unidentified male, and then drive around back,

where he remained, out of sight, for twenty minutes. At 4:20

p.m., an individual identified only as "Chepe" called Robles, who

stated that he was picking up the tickets at that moment and that

he would proceed to deliver them. When Robles departed, he was

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followed to a Ponderosa restaurant, where he met briefly with two

men. Shortly thereafter, the two men were detained and $715,309

was seized from a suitcase and a cardboard box found in their

car. The following day, Papo and Robles had three telephone

conversations about the seizure, including the question of who

would assume responsibility for the lost money.

In recorded conversations on July 8, 1994, Robles

confirmed with Montalvo and an individual identified as "Gurucho"

that Gonz lez-Maldonado had all the tickets. In his conversation

with Gurucho, Robles indicated that Gurucho should contact

Gonz lez-Maldonado about a delivery. Gonz lez informed Robles

that Gurucho had directed them to make a delivery to an

individual identified as "Nina" at the Condado Plaza Hotel.

On July 9, 1994, the FBI established surveillance at

the Condado Plaza Hotel. FBI Special Agent Jane Peltier

testified that Robles went to Mazda Fever around 8:30 a.m.

Shortly after, he left Mazda Fever and proceeded to the Condado

Plaza Hotel parking garage, arriving around 9:00 a.m. Carrying a

gray bag, he went to the eighth floor, and then left the hotel

empty-handed. FBI agents entered room 825 and recovered the gray

bag and seized $243,600 from the safe in the room.

At the time of Montalvo's arrest, police seized, among

other things, a photocopy of a Puerto Rico lottery check, two

pagers, and two notebooks. In addition to Montalvo and Gonz lez-

Maldonado, the police arrested Robles. The three were to be

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tried together until, in March 1995, Robles was found incompetent

to stand trial and the case against him was severed.

Appellants assert several claims on appeal. We find

some of those claims valid, warranting reversal of the

convictions. In order to give as much guidance as possible to

the district court, we also discuss some of the other claims that

are likely to resurface if there is a new trial.

I. The Psychiatric Testimony of Dr. Jos Fumero
I. The Psychiatric Testimony of Dr. Jos Fumero

Appellants argue that the district court erred in

excluding the testimony of Dr. Fumero, the psychiatrist who had,

at the court's direction, initially examined Robles for

competency. This claim includes two distinct arguments. First,

appellants claim that the court erred in excluding Dr. Fumero's

testimony after defense counsel had relied on an earlier ruling

that the testimony would be allowed. Second, appellants assert

that the court's decision to exclude Fumero's testimony was based

on the mistaken belief that the testimony was offered only to

address the issue of Robles' competency as a witness. Appellants

contend that the testimony was actually offered to:

provide information concerning Robles'
medical history and his diagnosed
schizophrenia, and the possible
ramifications of Robles' illness for
evaluation of the evidence to be
introduced at trial -- to provide
information relevant to whether, as a
result of his mental disease or defect
Robles was unable to appreciate the
nature and quality or wrongfulness of his
acts in May-June, 1994; or whether
aspects of his illness were relevant to
assessing the reliability and meaning of
Robles' statements.

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Brief of Appellant Montalvo, at 17. We deal with each claim in

turn.

A. Opening Statements
A. Opening Statements

Prior to trial, defense counsel met with Dr. Fumero,

who had conducted the competency examination of Robles. Fumero

opined that Robles was suffering froma mental illness at the time

of the offenses and that his mental illness resulted in a

tendency to exaggerate. Defense counsel informed the court that

he intended to have Fumero testify at trial, arguing that

Fumero's testimony should be admitted so that the jury could

determine the weight to be given to the taped conversations. Tr.

1 at 7. The court stated that it would "let Dr. Fumero testify

and then let that go to the jury."1 Tr. 1 at 21.

During opening statements, counsel for both defendants

made reference to Robles' mental state. Counsel for Gonz lez-

Maldonado promised the jury that he would produce a psychiatrist

who would testify that a person in Robles' condition

"exaggerates, and that everything that he talks about is

greater." Tr. 1 at 163. Counsel for Montalvo, in his opening

statement, stated:

The expert selected by this Court,
Dr. Fumero, selected by this Court, will
come here, will sit there and will
testify that during this conspiracy . . .
Mr. Julio Robles-Torres was mentally
insane. Therefore, you cannot trust him.

1 Following opening statements, the court reiterated its intent
to allow Dr. Fumero to testify. "I said I would allow Dr. Fumero
to testify at trial." Tr. 1 at 189.

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You cannot put much attention to what
he's saying because he exaggerates.

Tr. 1 at 169.

During the presentation of defendants' case, the court

reconsidered its earlier decision and decided that Dr. Fumero

would not be allowed to testify because the testimony would only

go to the issue of Robles' competency as a witness, which is a

question for the court, and that evidence of a mental defect does

not render testimony inadmissible. See Tr. 8 at 1506.

Appellants argue that even if Fumero's testimony was

properly excluded, the court committed reversible error by first

ruling that it would permit Fumero to testify and then, after the

close of the government's case, ruling that his testimony would

be excluded.

In Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988),

defense counsel, in his opening, told the jury that he would call

a psychiatrist and a psychologist to show that the defendant had

no appreciation of what he had done. Counsel subsequently rested

his case without calling the promised doctors, although they were

available. On appeal, this court held that the failure to call

these witnesses amounted to ineffective assistance of counsel,

stating that "little is more damaging than to fail to produce

important evidence that had been promised in an opening." Id. at

17. "The first thing the ultimately disappointed jurors would

believe, in the absence of some other explanation, would be that

the doctors were unwilling, viz., unable, to live up to their

billing. This they would not forget." Id. "[T]he jurors'

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conclusion would remain that impartial experts -- the most

qualified witnesses -- would not testify as counsel had said they

would; in effect a contradiction of the favorable lay witnesses,

much worse than if he had not mentioned the doctors initially."

Id. Furthermore, "to promise even a condensed recital of such

powerful evidence, and then not produce it, could not be

disregarded as harmless. We find it prejudicial as a matter of

law." Id. at 19.

The case at bar raises similar concerns. The opening

statements for the defense included a promise to the jury that a

psychiatrist would testify to the effect that Robles exaggerates

as a result of his mental illness. Unlike in Anderson, it was

the district court that prevented the defense from fulfilling its

promise to the jury. Having obtained the assurance of the court

that Dr. Fumero would be allowed to testify, defense counsel

stated as much to the jury. When the court later changed its

mind and ruled that the expert would not be permitted to testify,

defendants were unable to produce the promised testimony.

Like the jury in Anderson, the jury in this case was

likely to infer from defense counsel's failure to call Dr. Fumero

that he was unwilling to testify for the defense. Nor was the

jury informed of the fact that it was the court's ruling, rather

than the defendants' decision, that kept Dr. Fumero off the

stand. Although Anderson concerned an ineffective assistance of

counsel claim, the principle behind Anderson applies in this

case. A defendant's opening statement prepares the jury to hear

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his case. If the defense fails to produce promised expert

testimony that is critical to the defense strategy, a danger

arises that the jury will presume that the expert is unwilling to

testify and the defense is flawed. That the defendant should

suffer this presumption because he relied on a prior ruling of

the trial court that the same court later reversed, rather than

because of poor judgment on the part of his own counsel, in no

way changes the fact that the presumption formed in the minds of

the jury is prejudicial. As we did in Anderson, we find that

promising to admit this important evidence and then failing to

produce it is prejudicial as a matter of law in the circumstances

of this case. Following Anderson, therefore, we find that

denying defendants the opportunity to have Dr. Fumero testify, in

light of the fact that the court's decision on the matter led

defense counsel, in their opening remarks, to promise the

expert's testimony to the jury, was reversible error.

B. The Admissibility of Dr. Fumero's Testimony
B. The Admissibility of Dr. Fumero's Testimony

Appellants also challenge the district court's ruling

that Dr. Fumero's testimony is inadmissible. On appellate

review, "[a] district court's decision to admit or exclude expert

testimony is entitled to great deference." United States v.

Shay, 57 F.3d 126, 132 (1st Cir. 1995). We will reverse the

trial court's decision on this question only if "(1) the district

court based the decision on an incorrect legal standard, or (2)

we have a 'definite and firm conviction that the court made a

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clear error of judgment in the conclusion it reached based on a

weighing of the relevant factors.'" Id. (citations omitted).

Defendants' argument proceeds as follows. Dr. Fumero

was a qualified witness within the meaning of Federal Rule of

Evidence 702, as the court agreed. Tr. 8 at 1483. He proffered

to the court that the symptoms of Robles' mental condition

include "verbosity;" "grandeza" ("[h]e has to feel important and

the center of attention as part of his . . . fragmented ego

needs"), Tr. 8 at 1497; and exaggeration. Because defendants

faced criminal charges based largely on recorded conversations

involving Robles, and because the government claimed that these

conversations demonstrated the existence of a drug conspiracy,

the weight placed on the taped conversations by the jury was of

paramount importance. Indeed, the defendants' case was founded

on the view that the recorded conversations were discussions of

legitimate business dealings. If the jury could be convinced

that Robles' testimony was unreliable because he had a medical

condition that led him to exaggerate, it would be more likely to

believe the defense theory that they were involved in legal

business activity.

The district court ruled that Dr. Fumero would not be

allowed to testify on the ground that "the fact that a person may

suffer a mental defect or problem does not render his testimony

inadmissible." Tr. 8 at 1459. The court stated further that

"[y]ou cannot bring a witness and say, well, this man is not

telling the truth or he can't tell the truth." Tr. 8 at 1465.

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The court appears to have understood Dr. Fumero's testimony to be

related to the competency of Robles: "What I suggest to you is

that we give to the jury a stipulation that Julio Robles had been

held not competent to stand trial at this time but that he is

being evaluated further." Tr. 8 at 1466.

It is well established that a witness' mental state can

be relevant to the issue of the witness' credibility. United

States v. Butt, 955 F.2d 77, 82 (1st Cir. 1992). The competency

of a witness to testify is a determination to be made by the

trial judge, but issues of credibility are for the trier of fact.

See United States v. Carroll, 105 F.3d 740, 743 (1st Cir. 1997);

United States v. Hyson, 721 F.2d 856, 864 (1st Cir. 1983).

The ability of parties to offer expert testimony on the

question of credibility is not, however, unlimited. "[A]n

expert's opinion that another witness is lying or telling the

truth is ordinarily inadmissible pursuant to Rule 702 because the

opinion exceeds the scope of the expert's specialized knowledge

and therefore merely informs the jury that it should reach a

particular conclusion." Shay, 57 F.3d at 131. On the other

hand, "no constitutional provision, law, or rule requires the

exclusion of expert testimony simply because it concerns a

credibility question." Id. To be admissible under Federal Rule

of Evidence 702, a proposed expert witness must: (1) be

qualified to testify as an expert by "knowledge, skill,

experience, training, or education," Fed. R. Evid. 702; (2) the

testimony must concern "scientific, technical, or other

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specialized knowledge," Fed. R. Evid. 702; and (3) the testimony

must "assist the trier of fact to understand the evidence or to

determine a fact in issue." Fed. R. Evid. 702. Shay, 57 F.3d at

132.

In Shay, the defendant, Shay Jr., was convicted of

"conspiracy and aiding and abetting an attempt to blow up his

father's car." Shay, 57 F.3d at 128. Shortly after the bombing,

he told a police officer that "he was sorry about it and wished

he could turn back the hands of time." Id. The government

argued that this statement was evidence of Shay Jr.'s guilt. As

part of his defense, Shay Jr. sought to call Dr. Phillips, a

psychiatrist, to testify that Shay Jr. suffered from a mental

disorder known as "pseudolog a fant stica." The expert witness

was to testify that this illness caused Shay Jr. to fabricate

self-aggrandizing lies that would place him at the center of

attention. Id. at 129-30. The district court excluded this

testimony on the ground that the jury was capable of determining

the reliability of Shay Jr.'s statements.

The Shay panel held that expert psychiatric testimony

can be admitted in appropriate circumstances to establish a

witness' "character for truthfulness." Id. at 131. The instant

case is governed by Shay, and our analysis follows the one

adopted there.

Neither party challenges Dr. Fumero's qualifications as

an expert. The proffered testimony concerned the mental illness

of Robles and its impact on his behavior -- implying that it

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concerned "scientific, technical or specialized knowledge." The

remaining question is whether it would have assisted the trier of

fact to understand the evidence or to determine a fact in issue.

The question that a court must answer in determining whether a

proposed expert's testimony will assist the trier of fact is

"whether the untrained layman would be qualified to determine

intelligently and to the best degree, the particular issue

without enlightenment from those having a special understanding

of the subject matter involved." Id. at 132 (internal quotation

marks omitted). Dr. Fumero's testimony would have discussed

Robles' mental illness. Dr. Fumero would have testified that

Robles, as a result of his illness, was prone to exaggeration.

Moreover, this case has a unique dimension. Because

Robles was incompetent to testify, the jury did not have the

usual chance to evaluate his demeanor. Yet, the tapes containing

his statements were introduced, and they were damaging to the

defense. In light of the fact that the government's case was

heavily dependent on Robles' taped conversations, we believe

that, in these unusual circumstance, the testimony that he had a

mental illness that led to "verbosity," "grandeza," and

exaggeration was highly relevant and that an untrained layman

would not be qualified to determine intelligently, and to the

best degree the weight to place on Robles's recorded statements

without enlightenment from Dr. Fumero.

The government argues that Dr. Fumero's testimony

should be disallowed because the taped conversations featured

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current actions which were largely corroborated. To the extent

that Robles did suffer from the mental illness at issue, however,

Dr. Fumero's testimony could be relevant to the credibility of

current statements. The defense theory is that Robles

exaggerated his situation in statements that he made -- a claim

for which Dr. Fumero's testimony is clearly relevant. That the

statements were, in the view of the government, accurate, is

something for the jury to consider in its deliberations. It goes

to the weight to be given to the evidence and is not a reason to

exclude Dr. Fumero's testimony.

We conclude, therefore, that the district court erred

in refusing to allow Dr. Fumero to testify.2

II. The Use of the Government's Transcripts
II. The Use of the Government's Transcripts

A. The Transcripts
A. The Transcripts

Defendants also claim that transcripts provided by the

government and used by the jury should not have been permitted.

The government provided transcripts of the taped conversations to

the jury so that when the tape was played, the jury could follow

along on the transcripts. The transcripts included quotation

marks around certain words that the government claimed were code

words used to conceal the illegal nature of the conversations.

For example, quotation marks were placed around words such as

"ticket," which the government claimed referred to money, and

2 We need not engage in a harmless error analysis at this point
because we are reversing and remanding on other grounds, as
discussed in the preceding section of this opinion.

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"accident," which allegedly referred to arrest. Defendants'

objection to these transcripts was overruled.

This circuit allows the use of transcripts as a jury

aid to tape recording playback. See United States v. Carbone,

798 F.2d 21, 26 (1st Cir. 1986). Where transcripts are used, the

judge should, as was done here, "make clear [to the jury] that

the tapes, not the transcript, constitute evidence in the case."

United States v. Richman, 600 F.2d 286, 295 (1st Cir. 1979).

Furthermore, we have stated that:

Even if transcripts are not admitted in
evidence, in the sense of being marked as
exhibits, they are read and relied on by
the jury to follow the playback. They
should, therefore, be as accurate as
possible.

Carbone, 798 F.2d at 27.

The quotation marks used in the transcripts submitted

to the jury in this case reflect the government's theory of the

case. The government does not claim that there is any audible

emphasis or other vocal inflection placed on the marked words

that is discernible when listening to the tape and failed, both

at trial and on appeal, to offer any legitimate explanation for

the quotation marks. We hold that the trial court committed

erred when it allowed the use of transcripts that contained

quotation marks around certain words. It is not enough that the

court instructed the jury that only the tapes, and not the

transcripts, were evidence. Nor is it enough for the government

to subsequently present evidence that the words were code words.

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The government should not be allowed to bolster its argument by

customizing the transcript to reflect its own theory of the case.

B. The Agents' Interpretation of the Transcript
B. The Agents' Interpretation of the Transcript

The next claim advanced by appellants is that the court

erred when it allowed FBI agents to interpret the recorded

conversations. Appellants' briefs fail to offer detailed

descriptions of the incidents to which they object, although

Gonz lez-Maldonado's brief cites to seventeen incidents that are

generally alleged to represent occasions on which the agents'

interpretations went beyond interpretation of code words.

Although appellants objected on certain occasions, they failed to

object on many of the instances cited in Gonz lez-Maldonado's

brief.

Although expert testimony is permitted in order to

assist the jury in understanding "code-like" conversations in

tape recordings, interpretations of clear conversations are not

admissible. See United States v. Montas, 41 F.3d 775, 783-84

(1st Cir. 1994); United States v. Lamattina, 889 F.2d 1191, 1194

(1st Cir. 1989).

Expert testimony on a subject that is
well within the bounds of a jury's
ordinary experience generally has little
probative value. On the other hand, the
risk of unfair prejudice is real. By
appearing to put the expert's stamp of
approval on the government's theory, such
testimony might unduly influence the
jury's own assessment of the inference
that is being urged.

Montas, 41 F.3d at 784.

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We are conscious of the fact that the interpretation of

alleged code-words used by the defendants in a complex case such

as this may require the expert to make statements about the

context in which those words are being used. Nevertheless, we

find that in some of the instances cited by appellants, the court

erred by allowing FBI agents to comment on clear statements

contained on the tapes. Because we are reversing on other

grounds, we need not review each alleged transgression. Instead,

we offer an example, in the hope that such errors can be avoided

if there is another trial.

At one point Agent Plichta observed, in reference to

one of the recordings, that the participants in a conversation

"appeared relieved when they -- when they -- when they discussed

the fact that apparently they'd been able to make the delivery of

money and nothing happened. They were both relieved and I

believe one of them even chuckles a bit about that." Tr. 5 at

848. That the speakers on the tape were, or were not, relieved

is for the jury to determine, and the testimony of the agent does

not assist them in this effort.

III. Spanish Definitions in Jury Instructions
III. Spanish Definitions in Jury Instructions

Appellant Montalvo claims that the district court erred

in its instructions to the jury. Specifically, he alleges that

the court included in its definition of the term "willfully" a

Spanish translation that is inaccurate.

In delivering its instructions, the court stated the

following:

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The word "knowingly," as that term has
been used from time to time in these
instructions, means that the act was done
voluntarily and intentionally and not
because of mistake or accident. That is,
"knowingly" means in Spanish a sabiendas.

The word "willfully" -- that is
voluntariamente in Spanish -- as that

term has been used from time to time in
these instructions, means that the act
was committed voluntarily and purposely
with the specific intent to do something
the law forbids; that is to say, with bad
purpose either to disobey or disregard
the law . . . .

Now, unlawfully -- in Spanish
ilegalmente -- means contrary to law.

Tr. 9 at 1704-05.

Montalvo argues that the term voluntariamente is

equivalent to the English term "voluntary" and, therefore,

represents only one aspect of willfulness. As the English

definition suggests, willfulness also requires that the act be

committed purposely and with the intent to do something that the

law forbids. See United States v. Yefsky, 994 F.2d 885, 899 (1st

Cir. 1993). We conclude that Montalvo is correct in his

assertion that the term voluntariamente means "voluntary." See

The Collins Spanish-English English-Spanish Dictionary (2d ed.

1988). It follows that the use of this term in order to assist

jurors, whose predominant language may be Spanish, in

understanding the term "willfully" was ill-advised. We need not

inquire into the question of whether it is reversible error,

however, as we are reversing the judgment on other grounds.

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We add the following note of caution. Although we do

not believe that there should be an absolute rule prohibiting the

use of non-English words when instructing the jury, we do believe

that this practice is inadvisable and should be discouraged. The

English meaning of the word "willfully," for example, is

adequately covered by an instruction such as those that have been

approved by this court in the past. See, e.g., United States v.

Shadduck, Nos. 95-1395, 95-1396, 96-1342, F.3d , 1997 WL

191877, at *4 (April 24, 1997); Yefsky, 994 F.2d at 899.3 We

therefore instruct the district courts to frame instructions in

English.

IV. The Admission of Evidence
IV. The Admission of Evidence

A. The Lottery Check
A. The Lottery Check

At trial, the government admitted into evidence a

photocopy of a 1992 lottery check seized from Montalvo at the

time of his arrest. The check was in the amount of $250,000.

The government introduced the evidence because Robles revealed to

the undercover team that he had provided a winning lottery ticket

in the amount of $250,000 to a friend of Papo who, the government

claimed, was in the drug business. That appellant possessed a

check for the exact amount was, the government argued, probative

3 Reasonable proficiency in teh English language is a required
qualification for a juror. See 28 U.S.C. 1865(b)(2) & (3);

United States v. Aponte-Su rez, 905 F.2d 483, 492 (1st Cir.

1990). That juries understand English is also a practical need.
The use of English is necessary for the creation of an appellate
record which will be read by appellate judges who may not be
versant in other languages, and who do not have the benefit of an
official translator as is available in district courts.

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of his involvement in the alleged conspiracy. Furthermore, the

government claims that the fact that the check was dated two

years before the events described does not change the fact that

it was relevant because Papo had worked with Robles for a long

time and the check was offered to demonstrate the existence of a

conspiracy long before the events of May through July 1994.

Appellant Montalvo claims that the check lacked

relevance to the case. He claims that "[t]here was no evidence

to show that the ticket had come from Robles, that it was

purchased with the proceeds of drug transactions or that it

evidenced Montalvo's involvement with Robles in drug distribution

at some earlier time." Brief of Appellant Montalvo, at 32. In

essence, appellant contends that there was nothing to indicate

that the check was evidence of any element of any charged

offense.

We add that, at sentencing, the judge stated, "I don't

find a reasonable connection for this case to find by a

preponderance of the evidence that the $250,000 lottery ticket

that was purchased is part of this conspiracy, and therefore I am

excluding it." Transcript of Sentencing, at 10.

We review this evidentiary ruling for abuse of

discretion. United States v. Brandon, 17 F.3d 409, 443-44 (1st

Cir. 1994).

Our review of the testimony fails to reveal any

demonstrated connection between the photocopy of the check and

the charges brought against defendants. The check was from

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before the dates at issue in this case and no evidence was put

forward to suggest that it was connected to drug transactions,

except the general claim by the government that lottery checks

were used to launder money. The government argued at trial,

however, that the check was relevant to demonstrate the existence

of the conspiracy prior to the dates at issue. Given our

deferential standard of review, we, therefore, do not find abuse

of discretion in this case. Although we might conclude

differently if our review were de novo, we do not believe that

the court abused its discretion in accepting this argument.4

B. The Notebook Seized During Montalvo's Arrest
B. The Notebook Seized During Montalvo's Arrest

Appellant Montalvo also objects to the admission of a

notebook seized at his home at the time of his arrest. The

government's expert witness, FBI Agent Carl Jensen, testified

that "[t]he submitted documents are in a format of records which

could be maintained in connection with an illicit drug

distribution business." Tr. 7 at 1203. Appellant argues that

the notebook had no probative value because there was no

indication as to when or by whom the notations had been made,

there were no initials or names, no dollar signs or terminology

attached to the numbers, and no correlation between the numbers

in the notebook and the amounts involved in the offenses charged.

Our review is, once again, on an abuse of discretion

standard and we do not find such abuse here. The government

4 Our failure to find abuse of discretion, of course, should not
be taken as determinative of whether the lottery check should be
admitted in a future trial.

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advanced the testimony of an expert witness who testified that

the notebook appeared to be a record of drug transactions; and

that it "lack[ed] the class characteristics [one] would expect to

find with legitimate type business records," Tr. 228 at 1203-

1204; and that the apparent prices in the notebook were

consistent with the prices of kilogram quantities of cocaine in

central Florida, where appellant Montalvo lived during the time

frame of these events.

Based on this testimony, we do not find that the court

abused its discretion in admitting the notebook into evidence.

The trial court was in a much better position than this court to

assess the relevance of the notebook. The decision to admit the

notebook was within the sound discretion of the district court.

C. Notebook Seized from Robles
C. Notebook Seized from Robles

Appellant Montalvo next claims error in the admission

of a notebook seized from Robles' home on the ground that it was

not adequately authenticated as required by Federal Rules of

Evidence 901.5 We review for abuse of discretion. United States

v. Echeverri, 982 F.2d 675, 679 (1st Cir. 1993).

5 Rule 901 provides, in part:

The requirement of authentication or
identification as a condition precedent
to admissibility is satisfied by evidence
sufficient to support a finding that the
matter in question is what its proponents
claim.

Fed. R. Evid. 901(a).

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We must determine whether "there is sufficient

threshold proof that the document is what its proponent claims it

to be." Id. at 679. The Federal Rules of Evidence take a

flexible approach to this issue. The document's authenticity may

be confirmed by "[a]ppearance, contents, substance, internal

patterns, or other distinctive characteristics, taken in

conjunction with circumstances." Id. The notebook was found,

along with Robles' identification card, in a briefcase in Robles'

room. Such circumstantial evidence is permitted in order to

authenticate the item. Id. at 680. We do not find that the

district court abused its discretion in admitting this document

into evidence.6

V. Sufficiency of the Evidence Claims
V. Sufficiency of the Evidence Claims

Appellants seek to have their convictions reversed and

the case dismissed on the grounds that there was insufficient

evidence, as a matter of law, to convict them. In reviewing such

a claim, we must determine if, "after assaying all the evidence

in the light most amiable to the government, and taking all

reasonable inferences in its favor, a rational factfinder could

find, beyond a reasonable doubt, that the prosecution

successfully proved the essential elements of the case." United

States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994). "[W]e do

not pass on the credibility of the witnesses, nor do we demand

that the government disprove every hypothesis consistent with the

6 We repeat our earlier statement that our conclusion that there
was no abuse of discretion should not be taken as a ruling on the
admissibility of the evidence on remand.

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defendant's innocence." United States v. Spinney, 65 F.3d 231,

234 (1st Cir. 1995) (citations omitted).

In order to prove the conspiracy charge, the government

was required to prove that appellants:

intended to agree and that they intended
to commit the substantive criminal
offense [distribution of cocaine] which
was the object of their unlawful
agreement. Due to the clandestine nature
of criminal conspiracies, the law
recognizes that the illegal agreement may
be either 'express or tacit' and that a
'common purpose and plan may be inferred
from
a
development
and
collocation
of
circumstances.'

United States v. S nchez, 917 F.2d 607, 610 (1st Cir. 1990)

(internal citations omitted).

To prove the money laundering charge, the government

had to demonstrate that defendants:

(a)(1) knowing that the property involved
in a financial transaction represent[ed]
the proceeds of some form of unlawful
activity, conduct[ed] or attempt[ed] to
conduct such a financial transaction
which in fact involves the proceeds of
specified unlawful activity

(A)(i) with the intent to promote
the carrying on of specified
unlawful activity; or
. . . .
(B)knowing that the transaction is
designed in whole or in part to
conceal or disguise the nature, the
location, the source, the
ownership, or the control of the
proceeds of specified unlawful
activity.

18 U.S.C. 1956(a)(1).

The convictions in this case rested on conversations

between appellants and Robles, as well as other conversations

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involving Robles. It was for the jury to determine whether these

conversations related to legitimate business dealings or illegal

drug transactions. Viewing the evidence in the light most

amiable to the government, we conclude that a reasonable jury

could have concluded that the conversations in the tapes

concerned drug related transactions. With respect to Montalvo,

the jury could also have inferred guilt from the notebooks and

the lottery check put into evidence. With respect to Gonz lez-

Maldonado, evidence was presented that transactions took place at

his place of business and a reasonable jury could have concluded

that the taped conversations demonstrated his involvement in the

conspiracy and the money laundering. These conversations could

be interpreted to have dealt with cocaine that had been damaged

in shipment, cocaine stored at his place of business, and cocaine

to be imported in the future. Such inferences were permissible

and, therefore, we find the sufficiency of the evidence claim to

be without merit.

VI. Sentencing
VI. Sentencing

Finally, appellant Montalvo claims error in both the

court's calculation of the quantity of drugs for which he should

be held responsible and the court's role-in-the-offense

determination. Because we are remanding the case, we need not

reach this issue. In the event of a new trial, with different

testimony and different arguments, the trial court will be in a

better position than we are today to determine the quantity of

drugs for which appellants, if convicted, should be held

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responsible, and to make an evaluation of defendants' role in the

offense.

VII. Conclusion
VII. Conclusion

For the reasons stated herein, we vacate appellants'
vacate

convictions and remand the case to the district court for further
remand

proceedings consistent with this opinion.

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