United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1249
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the District of
* Minnesota.
Carlos Gutierrez, *
*
Defendant-Appellant. *
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Submitted: February 10, 2004
Filed: May 4, 2004
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Before MELLOY, FAGG, and COLLOTON, Circuit Judges.
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MELLOY, Circuit Judge.
Carlos Gutierrez was charged with conspiracy to possess with intent to
distribute more than five kilograms of cocaine, conspiracy to possess with intent to
distribute more than 500 grams of methamphetamine, possession with intent to
distribute approximately 5.9 kilograms of cocaine, and possession with intent to
distribute approximately 443 grams of methamphetamine, in violation of 21 U.S.C.
§§ 841(b)(1)(A), 841(a)(1), 841(b)(1)(B), 846, and 18 U.S.C. § 2. A jury found
Gutierrez guilty of these charges. The district court1 sentenced Gutierrez to 360
months imprisonment. Gutierrez appeals his conviction and sentence. We affirm.
A. English Transcripts of Spanish Conversations
At trial, the government presented several recordings of court-authorized
wiretaps that linked Gutierrez to a large-scale drug conspiracy. All of these recorded
conversations were in Spanish. Gutierrez contends that the admission of the English
transcripts violated his due process rights because the transcripts lacked proper
foundation. We disagree.
The government introduced the English transcripts of the wiretapped Spanish
conversations during the testimony of Officer Luis Porras, a police officer who
worked undercover in the investigation that led to Gutierrez’s arrest. Officer Porras
testified that he is fluent in written and spoken Spanish and that he has worked as an
undercover officer on more than one hundred occasions, almost always with Spanish-
speaking individuals. During the investigation in this case, Officer Porras
communicated with Gutierrez’s coconspirator, Luis Andrade, several times. The two
always spoke Spanish and had no difficulties understanding each other.
Before trial, Officer Porras listened to all of the recorded conversations and
reviewed each of the transcripts. At trial, Officer Porras identified the speakers in the
conversations and testified that the transcripts were accurate translations. We agree
with the district court that Officer Porras was qualified to opine as to the accuracy of
the transcripts. We find that his testimony provided a sufficient foundation for the
introduction of the transcripts.
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
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Gutierrez next argues that the district court erroneously instructed the jury
regarding the transcripts. The district court instructed as follows:
There is a typewritten transcript which you have in front of you
of the tape recording that you are about to hear. The tape recording, or
the transcript undertakes to provide a translation of the language that
you are about to hear, and also to identify the speakers who are engaged
in the conversation.
Let me clarify for you that you are permitted to have the transcript
for the limited purpose of helping you follow the conversation as you
listen to the tape recording, and to help you keep track of the speakers.
The tape recording itself, however, is the primary evidence of its
own contents. In particular, you’re specifically instructed as to whether
the transcript correctly or incorrectly reflects the identity of the speakers.
That is for you to decide based upon what you’ve heard about the
preparation of the transcript and upon your own examination of the
transcript in relation to what you hear on the tape recording.
And also, let me just state that if you find that the transcript is in
any respect incorrect or unreliable, then you should disregard it to that
extent. Because the tape recording itself is the primary evidence of its
contents.
The district court’s instruction is patterned after § 2.06 of the Eighth Circuit
Manual of Model Criminal Jury Instructions. As this court recently held in United
States v. Gonzalez, — F.3d —, 2004 WL 875726, at *3 (8th Cir. Apr. 26, 2004), this
model instruction is not well suited for transcripts of conversations originally spoken
in a foreign language, as it presumes the jurors can understand the foreign language
spoken in the original conversation. When dealing with English transcripts of
recorded conversations that were originally spoken in a foreign language, district
courts are encouraged to use an instruction similar to the Seventh Circuit’s Federal
Criminal Jury Instruction § 3.18. See id., at *3-4. That instruction provides:
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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
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).
Gutierrez did not suffer prejudice by the trial court’s use of the pattern Eighth
Circuit instruction. See Smith v. Chase Group, Inc., 354 F.3d 801, 808 (8th Cir.
2004) (“[E]rrors regarding jury instructions will not demand reversal unless they
result in prejudice to the appealing party.”). The purpose of an appropriate jury
instruction would have been to inform the jury of its duty to determine the accuracy
of the transcripts. Gutierrez failed to identify any inaccuracies in the transcripts to
the district court, nor does he identify any inaccuracies on appeal.2 Consequently, we
must assume the transcripts were accurate. United States v. Riascos, 944 F.2d 442,
444 (8th Cir. 1991). Because Gutierrez failed to allege that the transcripts were
2
We note that Gutierrez’s attorney had access to the wiretap recordings and
transcripts prior to trial and that a Spanish interpreter testified on behalf of Gutierrez
at trial.
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inaccurate, he cannot show that he suffered prejudice as a result of the instruction
given by the district court.
B. Other Issues
Gutierrez also contends that the evidence presented at trial was insufficient to
support his conviction. We must reject this challenge 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). 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, Luis Andrade testified that Gutierrez supplied him with large quantities
of methamphetamine and cocaine. Andrade stated that Gutierrez directed two
couriers to transport approximately six kilograms of cocaine and approximately one
pound of methamphetamine to Minnesota in September 1998. Seized drugs and
several wiretapped conversations regarding drug shipments corroborated this
testimony. Hotel records linking Gutierrez to the couriers and the September 1998
drug shipment further corroborated Andrade’s testimony. We find that the
government presented sufficient evidence to support Gutierrez’s conviction.3
Gutierrez also challenges the district court’s imposition of a role-in-the-offense
enhancement under U.S.S.G. § 3B1.1(a). The district court determined that a four-
level increase was appropriate because Gutierrez led and organized a drug conspiracy.
3
Gutierrez argues that Andrade’s testimony was not credible due to Andrade’s
desire to receive a reduced sentence. This argument is unpersuasive, for we have
consistently held that issues of witness credibility are for a jury to decide. See United
States v. Santos-Garcia, 313 F.3d 1073, 1081 (8th Cir. 2002); United States v. Harris,
310 F.3d 1105, 1111 (8th Cir. 2002).
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The record supports the district court’s finding that Gutierrez directed five or more
people and exercised decision-making authority in the drug conspiracy: he arranged
drug transactions in California, coordinated the shipment of drugs to Minnesota
through several couriers, and received payment for the drugs. We cannot say the
district court clearly erred by imposing a leadership enhancement under these
circumstances. See United States v. Thompson, 210 F.3d 855, 861 (8th Cir. 2000)
(holding that the terms “organizer” and “leader” are to be interpreted broadly).
We have considered the other arguments raised by Gutierrez on appeal and find
they are without merit. The judgment and sentence of the district court are affirmed.
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