United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2263
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the Eastern District
* of Missouri.
Juan Francisco Gonzalez, *
also known as Michael *
Andrew Quinones, *
*
Defendant-Appellant. *
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Submitted: November 18, 2003
Filed: April 26, 2004
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Before RILEY, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
Juan Francisco Gonzalez appeals his conviction and sentence on charges of
conspiracy to distribute and possess with the intent to distribute more than five
kilograms of cocaine and more than 100 kilograms of marijuana, in violation of 21
U.S.C. § 841(a)(1) and 846, and a forfeiture judgment in the amount of $2,000,000
pursuant to 21 U.S.C. §§ 853. We affirm his conviction and the sentence imposed by
the district court.1
A. Spanish Language Translations
At trial, the government introduced recordings of court-authorized wiretaps
linking Gonzalez to a large-scale drug conspiracy. Several of these wiretaps were
in Spanish. During the government’s case-in-chief, the district court allowed the jury
to read the government’s English transcripts of the Spanish conversations as the
recordings of those conversations were played. On appeal, Gonzalez argues that the
government’s transcripts were inaccurate and that he should have been afforded an
opportunity to present his translations of the recorded conversations
contemporaneously with the government’s translations. He also contends that the
jury instruction regarding the transcripts was inadequate. We review for an abuse of
discretion. See United States v. Beckman, 222 F.3d 512, 520 (8th Cir. 2000) (jury
instructions); United States v. Martinez, 951 F.2d 887, 888 (8th Cir. 1991) (admission
of tape and transcript).
The translations presented by the government were prepared by several
individuals under the supervision of Mr. Chavez. Mr. Chavez, a former police
officer, worked on more than ten Spanish-to-English wiretap translations for the Drug
Enforcement Agency from 1998 to 2003. He testified that he reviewed all of the
translations in this case and found them to be as accurate as possible.
Gonzalez objected to the government’s translations and sought to exclude
them. The district court overruled Gonzalez’s objection and, instead, appointed an
experienced translator, Mr. Marquez, to assist Gonzalez in challenging the
translations. Mr. Marquez testified that the government’s transcripts were accurate
1
The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
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overall. However, he challenged the following translations: “tontas” as “tons,”
“mosca” as “money,” and “Las Torres” as “New York City.” Mr. Marquez testified
that those words literally mean “dummies,” “fly,” and “the towers,” respectively. Mr.
Marquez was asked whether his literal interpretation of the word “tontas” made any
sense when used in the context of the following wiretap translation: “He has five
dummies (“tontas”), he is letting me have them for two out here, check it out, huh.”
Similarly, he was asked whether his interpretation of “mosca” made sense in the
following translation: “I mean, what I want is to go and give them some fly
(“mosca”), but I want to bring one, one of them here.” Mr. Marquez maintained that
his translations were accurate.
Initially, we address the appropriate method for introducing transcripts of
wiretapped conversations in criminal trials. Like our sister circuits, we believe that
whenever the parties intend to introduce a transcript at trial, they should first try “‘to
produce an ‘official’ or ‘stipulated’ transcript, one which satisfies all sides.’” United
States v. Cruz, 765 F.2d 1020, 1023 (11th Cir. 1985) (quoting United States v.
Wilson, 578 F.2d 67, 69-70 (5th Cir. 1978)). If they are unable to do so, “‘then each
side should produce its own version of a transcript or its own version of the disputed
portions. In addition, each side may put on evidence supporting the accuracy of its
version or challenging the accuracy of the other side’s version.’” Id. (quoting Wilson,
578 F.2d at 69-70).
Gonzalez argues that the district court committed reversible error by making
him wait until his case-in-chief to present his expert testimony and translation of the
wire interceptions. We disagree. So long as Gonzalez was given the opportunity to
challenge the government’s translations, the timing of that challenge is left to the
discretion of the district court.
We next consider whether the district court erred by allowing the government
to introduce transcripts containing the translator’s undisclosed opinions regarding
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foreign drug code. More specifically, we consider whether it was appropriate to
introduce a transcript suggesting that the Spanish words “mosca” and “tontas” mean
“money” and “tons,” when in fact, they literally mean “fly” and “dummies,”
respectively.
Generally, transcripts of translated conversations need not be verbatim. See
United States v. Garcia, 20 F.3d 670, 673 (6th Cir. 1994); United States v. Zambrana,
864 F.2d 494, 498 (7th Cir. 1988). In the case of slang terms or idioms which are
widely used and understood by the native speakers of the foreign language,
translators are allowed to provide nonliteral translations so that the foreign term or
phrase makes sense in English. Zambrana, 864 F.2d at 498. However, in the case at
bar we are not dealing with the translation of common slang terms or idioms. The
government’s theory at trial was not that “mosca” (“fly”) and “tontas” (“dummies”)
are generally used by Spanish speakers to mean “money” and “tons.” Rather, the
government’s theory was that Gonzalez and his cohorts used those meanings to
facilitate communication in their covert drug operations. The problem is that the
government’s transcript suggested that these words literally mean something they do
not.
Although it is unnecessary for a translator to take the intermediate step of
providing a literal translation of common slang terms or idioms, we believe more
precision is required when dealing with alleged drug code in criminal trials. The
potential for prejudice is too great in the latter situation. See United States v. Rena,
981 F.2d 765, 769 (5th Cir. 1993) (holding that the district court abused its discretion
in allowing the government to admit transcripts containing the transcribers’
interpretations of drug code). Thus, in the case of foreign drug code, the party
wishing to introduce the translation should ask the translator to identify the English
word that most closely captures the ordinary meaning of the foreign word. Then, the
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translator, if qualified as a drug code expert,2 or another witness with the requisite
knowledge, should be asked about his opinion regarding the contextual meaning of
the word. For example, if the witness’s experience leads him to believe that the
declarant used the word “mosca,” which literally means “fly,” as drug code for
“money,” then he can so testify. Like all expert testimony, this opinion will be
subject to attack on cross-examination and by the introduction of opposing opinions
from other qualified experts. Adherence to this procedure will allow the jury to
properly weigh the translated evidence.
The district court did not follow the above-mentioned procedure in the case at
bar. However, Gonzalez brought the translation discrepancies to the jury’s attention
through cross-examination of the government’s expert and the testimony of his court-
appointed translator. Gonzalez’s attorney also argued this point in closing argument.
Because the jury ultimately received all of the information it needed to weigh the
strength of the wiretap transcripts, we find that the district court’s error was harmless.
Gonzalez also challenges the district court’s jury instruction regarding the
transcripts. The district court instructed the jury as follows:
As you have heard, there is a typewritten transcript of the tape
recording you are about to hear. That transcript will be presented to you
[] in plasma screen format. That transcript undertakes to identify the
speakers engaged in the conversation. You are permitted to view the
transcript for the limited purpose of helping you follow the conversation
as you listen to the tape recording and also to help you keep track of the
speakers. The transcript, however, is not evidence. The tape recording
is the primary evidence of its contents.
2
Unlike commonly used slang terms and idioms, drug code is presumably
known and understood by only a small segment of the population. Thus, it is not
appropriate to presume, without laying a foundation, that a translator is qualified to
give opinions relating to alleged drug code.
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You are specifically instructed that whether the transcript
correctly or incorrectly reflects [the] conversation or the identity of the
speakers is entirely for you to decide based upon what you have heard
here about the preparation of the transcript in relation to what you hear
on the recording. If you decide that the transcript is in any respect
incorrect or unreliable, you should disregard it to that extent.
Differences in meaning between what you hear on the recording
or read in the transcript may be caused by such things as the inflection
in a speaker’s voice. You should therefore rely on what you hear rather
than what you read when there is a difference.
The district court’s instruction parallels the Eighth Circuit Manual of Model Criminal
Jury Instructions, § 2.06 (2003), the only model instruction in this circuit pertaining
to transcripts of tape-recorded conversations. This instruction is premised on an
assumption that the jury can understand the language being spoken on the recording.
Thus, while adequate for transcripts of English conversations, the instruction is not
useful for transcripts of conversations originally spoken in a foreign language.
An example of an instruction that solves this problem is the Seventh Circuit’s
model instruction § 3.18, which provides:
Among the exhibits admitted during the trial were recordings that
contained conversations in the _______ language. You were also
provided with English transcripts of those conversations. The transcripts
were provided to you [by the government] so that you could consider the
content of the conversations on the recordings.
Whether a transcript is an accurate translation, in whole or in part,
is for you to decide. In considering whether a transcript accurately
describes the meaning of a conversation, you should consider the
testimony presented to you regarding how, and by whom, the transcript
was made. You may consider the knowledge, training, and experience
of the translator, as well as the nature of the conversation and the
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reasonableness of the translation in light of all the evidence in the case.
You should not rely in any way on any knowledge you may have of the
language spoken on the recording; your consideration of the transcripts
should be based on the evidence introduced in the trial.
Seventh Circuit Federal Criminal Jury Instructions § 3.18, Foreign Language
Recordings/Transcripts in English (1999). This instruction is a coherent, accurate
statement of the law. We therefore encourage district courts to use an instruction
similar to it when introducing an English transcript of dialogue that originally was
spoken in another language.
The crux of the appropriate instruction set forth above is to inform the jury that
it must determine the validity of the transcript presented. We believe the jury was
aware of this duty in the case at bar. Gonzalez’s attorney cross-examined the
government’s translation expert, called his own translator to rebut the government’s
transcripts, and challenged the accuracy of the government’s transcripts in
summation. Thus, although the district court’s instruction was not well suited for the
facts of this case, Gonzalez did not suffer prejudice.
B. Other Issues
We now turn to Gonzalez’s remaining arguments. Gonzalez claims that a
search of the residence at 4925 Shaw Avenue, St. Louis violated his Fourth
Amendment rights, because the affidavit in support of the search warrant contained
misrepresentations in violation of Franks v. Delaware, 438 U.S. 154 (1978). “To
prevail on a Franks claim the defendant[] must show: (1) that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included in
the affidavit; and (2) that the affidavit’s remaining content is insufficient to establish
probable cause.” United States v. Reinholz, 245 F.3d 765, 774 (8th Cir. 2001).
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At trial, co-defendants Jason Webb, Shirley DeClue, Daniel Power, and Mark
Riebeling all identified Gonzalez as the leader of the drug organization.
Nevertheless, Gonzalez now contends that the search warrant affidavit erroneously
characterized him as the head of a narcotics organization. We find that Gonzalez’s
bald assertion, which was rebutted by trial testimony, is not enough to satisfy the first
element of the Franks test.
Gonzalez also argues that the search warrant affidavit contained erroneous
translations of wiretapped conversations. Gonzalez’s challenge to the translations
used in the affidavit is very similar to the challenge he raised regarding the transcripts
presented at trial. He claims that the nonliteral translations included in the search
warrant affidavit misled the issuing judge.3 We need not determine today whether the
nonliteral translations contained in the search warrant affidavit constituted “false
statements” under Franks, because even if the affidavit was perfected as Gonzalez
suggests, there would have been probable cause to search the residence. First, when
read in context, the issuing judge would have had a reasonable basis for finding that
the intercepted conversations were in drug code, in part because the literal
translations of the conversations did not make sense. Second, the wiretapped
conversations were corroborated by surveillance. Third, in addition to the wiretapped
conversations and surveillance, the search warrant affidavit noted that an individual
connected with Gonzalez’s drug organization had informed law enforcement agents
that narcotics were hidden in the residence. Combined, these facts created “a fair
probability that contraband or evidence of a crime” would be found therein. Illinois
v. Gates, 462 U.S. 213, 238 (1983). Consequently, Gonzalez’s Franks claim fails.
3
As noted above, the government translated “tontas” as “tons,” “mosca” as
“money,” and “Las Torres” as “New York City,” when those words literally mean
“dummies,” “fly,” and “the towers,” respectively.
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Gonzalez also argues that the evidence presented at trial was insufficient to
support his convictions. We will uphold the verdict if “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In making this
determination, we examine the evidence in the light most favorable to the verdict,
giving it the benefit of all reasonable inferences. United States v. Cruz, 285 F.3d 692,
697 (8th Cir. 2002).
At trial, co-defendants testified that they had an agreement with Gonzalez to
distribute and possess with the intent to distribute cocaine and marijuana. This
evidence sufficiently established that Gonzalez was involved in a drug trafficking
conspiracy. See United States v. Jimenez-Perez, 238 F.3d 970, 973 (8th Cir. 2001)
(“To convict an individual of conspiracy, the government must prove ‘that there was
a conspiracy with an illegal purpose, that the defendant was aware of that conspiracy,
and that he or she knowingly became a part of it.’”) (quoting United States v.
Beckman, 222 F.3d 512, 522 (8th Cir. 2000)). Gonzalez claims that the co-
defendants’ testimony was insufficient due to the co-defendants’ history of substance
abuse and their desire to receive reduced sentences. However, the record reveals that
the co-defendants’ testimony was corroborated by officer surveillance and seized
evidence. In any event, Gonzalez’s challenge is unavailing, as issues of witness
credibility are for a jury to decide. See United States v. Santos-Garcia, 313 F.3d
1073, 1081 (8th Cir. 2002).
Gonzalez also appeals the district court’s imposition of a two-level
enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). At the
sentencing hearing, co-defendant DeClue testified that she saw Gonzalez in
possession of a gun on approximately four occasions, and that Gonzalez used the gun
for protection and to control his drug clientele. According to DeClue, Gonzalez also
asked her to deliver a gun to two other members of the conspiracy. Based upon this
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evidence, we cannot say that the imposition of a firearm enhancement pursuant to
U.S.S.G. § 2D1.1(b)(1) was clearly erroneous. United States v. Williams, 10 F.3d
590, 595 (8th Cir. 1993).
Finally, Gonzalez argues that the district court erred in calculating the drug
quantity for which he is responsible. Drug quantities must be proven by a
preponderance of the evidence, and we will not reverse absent clear error. United
States v. Jimenez-Villasenor, 270 F.3d 554, 561 (8th Cir. 2001).
At trial, co-defendant Webb testified that Gonzalez received a 100-kilogram
shipment of cocaine in October 2001. Co-defendants Power and Riebeling testified
that Gonzalez directed them to retrieve an additional sixty-kilogram shipment of
cocaine. This evidence is sufficient to support the district court’s finding that
Gonzalez was responsible for more than 150 kilograms of cocaine. See United States
v. Sarabia-Martinez, 276 F.3d 447, 450 (8th Cir. 2002) (in determining drug quantity
accountability, a district court may rely solely on the testimony of cooperating co-
conspirators).
We have considered Gonzalez’s other arguments, some of which were raised
for the first time on appeal, and find they are without merit. The judgment and
sentence of the district court are affirmed.
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