[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15358
DECEMBER 19, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D.C. Docket No. 5:10-cr-00039-RS-LB-5
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
PASCUAL MONTOR-TORRES,
a.k.a. Toloche,
a.k.a. Cacheton,
a.k.a. Pasqual Montor-Torres,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
No. 10-15461
Non-Argument Calendar
________________________
D.C. Docket No. 5:10-cr-00039-RS-LB-4
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JOSE BARAJAS,
a.k.a. Tortugo,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Florida
________________________
(December 19, 2011)
Before MARCUS, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Pascual Montor-Torres appeals his conviction and sentence for conspiracy
to distribute and possess with the intent to distribute more than five kilograms of a
mixture and substance containing cocaine. Jose Barajas appeals his sentence for
conspiracy to distribute and possess with the intent to distribute more than five
kilograms of a mixture and substance containing cocaine, and for distribution and
possession with the intent to distribute more than 500 grams of a mixture and
substance containing cocaine. On appeal, Montor-Torres argues the district court
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erred by (1) admitting translated transcripts of Spanish wiretapped phone calls,
(2) denying his motion for a judgment of acquittal, (3) denying his motion for a
mistrial, and (4) sentencing him based upon the quantity of drugs found by the
jury. Barajas argues the district court erred by failing to grant (1) an acceptance
of responsibility reduction pursuant to U.S.S.G. § 3E1.1, and (2) a minimal role
reduction pursuant to U.S.S.G. § 3B1.2. We address each issue in turn, and affirm
Montor-Torres’s conviction and Montor-Torres’s and Barajas’s sentences.
I.
Montor-Torres first argues the district court erred by admitting transcripts
of the wiretap recordings, translated in English, as substantive evidence. He
claims the court erred by not contemporaneously playing the recordings because
the jury was unable to detect changes in voice modulation, note any hesitancies, or
consider other characteristics which might add meaning to the recordings.
We have adopted a proper procedure for challenging the accuracy of an
English language transcript of a conversation conducted in a foreign language.
United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir. 1985). The procedure has
been delineated as follows:
Initially, the district court and the parties should make an effort to
produce an ‘official’ or ‘stipulated’ transcript, one which satisfies all
sides. If such an ‘official’ transcript cannot be produced, then each side
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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. “[T]ranscripts may be used as substantive evidence to aid the jury in
determining the real issue presented, the content and meaning of the tape
recording.” Id. (citing United States v. Onori, 532 F.2d 938, 947 (5th Cir. 1976).
The district court did not abuse its discretion in admitting the English
transcripts. The district court provided Montor-Torres with the opportunity to
meet with interpreters and identify discrepancies, which could then be presented
through cross-examination or witnesses. The district court also suggested that
Montor-Torres play the tapes during his case-in-chief. Montor-Torres elected not
to take advantage of either opportunity. Moreover, Montor-Torres failed to
comply with the procedure set forth in Cruz by failing to produce “his own version
of a transcript” or his own version of the disputed portions. Cruz, 765 F.2d at
1023. Like Cruz, Montor-Torres “cannot complain on appeal that the jury’s fact-
finding function was usurped when he failed to present evidence which would
have aided the jurors in fulfilling that function.” Id.
Montor-Torres has also failed to point to any authority requiring that the
audiotapes be played contemporaneously with the reading of the transcripts.
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Although Cruz cited favorably to the district court’s playing of audio recordings,
as well as the limiting instruction given as to the transcripts’ use, these additional
steps were not required in the delineated procedure. Id. Moreover, Montor-
Torres was not entitled to a limiting instruction because, following the jury charge,
Montor-Torres stated no other instructions were needed. United States v. Smith,
459 F.3d 1276, 1297 (11th Cir. 2006). Finally, with regard to Montor-Torres’s
“voice modulation” argument, he cannot show an error that is obvious and clear
under current law. See United States v. Humphrey, 164 F.3d 585, 588 (11th Cir.
1999).1
II.
Montor-Torres next argues the district court erred by denying his motion for
a judgment of acquittal because the proof offered at trial was insufficient to
establish his identity.
Identity can be established by inference and circumstantial evidence.
United States v. Cooper, 733 F.2d 91, 92 (11th Cir. 1984). A speaker’s voice may
be identified by opinion testimony “based upon hearing the voice at any time
under circumstances connecting it with the alleged speaker.” Fed. R. Evid.
1
Because Montor-Torres raises his “voice modulation” argument for the first time on
appeal, it is subject to plain error review. See United States v. Naranjo, 634 F.3d 1198, 1206-07
(11th Cir. 2011).
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901(b)(5). Once a witness establishes familiarity with an identified voice, it is up
to the jury to determine the weight to place on the witness’s voice identification.
United States v. Cuesta, 597 F.2d 903, 915 (5th Cir. 1979).
The district court did not err by denying Montor-Torres’s motion for a
judgment of acquittal as there was sufficient evidence elicited at trial to establish
his identity.2 There was evidence presented that the voice of “Cacheton” and
“Toloche” in the wiretapped phone calls matched the voice of Montor-Torres,
including the same voice pattern. Additional testimony confirmed that Cacheton
and Toloche were the nicknames associated with Montor-Torres.
III.
Montor-Torres also contends the district court abused its discretion by
denying his motion for a mistrial after interrupting and abbreviating counsel’s
closing argument. He claims the court’s interruption amounted to a deprivation of
his right to the effective assistance of counsel.
The time allotted for closing arguments is within the sound discretion of the
district court. United States v. Alonso, 740 F.2d 862, 873 (11th Cir. 1984). “The
2
We review a district court’s denial of a motion for judgment of acquittal based on the
sufficiency of the evidence de novo. United States v. Friske, 640 F.3d 1288, 1290 (11th Cir. 2011).
We consider the evidence in the light most favorable to the government and will not overturn a
conviction if any reasonable construction of the evidence supports the jury’s verdict. Id. at 1291.
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trial court abuses its discretion only when the judge’s conduct strays from
neutrality, and even then only when its remarks demonstrate pervasive bias and
unfairness that actually prejudice a party.” United States v. Hill, 643 F.3d 807,
845-46 (11th Cir. 2011) (quotations and alterations omitted).
The district court’s interruption of Montor-Torres’s closing argument,
reminding counsel of the time, did not amount to prejudice of his substantial
rights.3 The comment “amount[s] to no more than [an] attemp[t] by the presiding
judge to expedite the proceedings.” United States v. Hill, 496 F.2d 201, 202 (5th
Cir. 1974). Moreover, the record does not support Montor-Torres’s contention
that his closing argument was curtailed by the court’s interruption. The court did
not inform counsel that his closing argument needed to end and Montor-Torres’s
attorney never requested additional time to conclude his argument. Therefore, the
district court did not abuse its discretion by denying his motion for a mistrial.
IV.
Montor-Torres’s final argument is that the district court erred by attributing
more weight of cocaine to him at sentencing than was adduced by the evidence at
3
“A mistrial should be granted if the defendant’s substantial rights are prejudicially
affected,” which occurs “when there is a reasonable probability that, but for the remarks, the
outcome of the trial would have been different.” United States v. Newsome, 475 F.3d 1221, 1227
(11th Cir. 2007).
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trial. He claims the proper offense level for sentencing purposes should have been
28, resulting in a guidelines range of 78–97 months.
As Montor-Torres cites to no case law in his brief, it is unclear whether he is
challenging the sufficiency of the evidence of the cocaine weight itself or the
district court’s use of the jury’s finding in calculating his base offense level.
Under either analysis, there was no error by the district court, as there was
sufficient evidence presented at trial to support the finding that Montor-Torres
conspired to possess five or more kilograms of cocaine. See United States v.
Saunders, 318 F.3d 1257, 1271 n. 22 (11th Cir. 2003) (noting that the findings of
fact of the sentencing court may be based on evidence heard during trial).
Moreover, the jury found that Montor-Torres was responsible for five or more
kilograms of cocaine. See United States v. Clay, 355 F.3d 1281, 1285 (11th Cir.
2004) (noting the use of special verdicts is appropriate for addressing sentencing
matters such as the quantity of drugs involved in an offense). Thus, the district
court did not clearly err in sentencing Montor-Torres using a drug quantity of five
or more kilograms.
V.
Barajas first argues the district court erred by not granting a sentence
reduction for acceptance of responsibility because he promptly gave a safety valve
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interview.4 He contends he is still eligible for a reduction despite having
proceeded to trial because he accepted responsibility before and during trial.
The acceptance of responsibility adjustment “is not intended to apply to a
defendant who puts the government to its burden of proof at trial by denying the
essential factual elements of guilt, is convicted, and only then admits guilt and
expresses remorse.” U.S.S.G. Manual § 3E1.1, cmt. n.2 (2010).
In rare circumstances, a defendant who goes to trial may nevertheless clearly
demonstrate an acceptance of responsibility for his criminal conduct, such as
where the defendant goes to trial to assert and preserve constitutional or legal
challenges that do not relate to factual guilt. Id.
Here, Barajas went to trial and attempted to suppress his safety valve
statement. While Barajas contends he proceeded to trial to preserve the legal
defense of duress, this defense was not presented until late in the trial. Not until
his closing argument, after arguing reasonable doubt and questioning his
involvement in the conspiracy and the amount of evidence presented, did Barajas
admit to transporting cocaine. Under these circumstances, the district court did
not clearly err by denying Barajas’s request for a reduction. See United States v.
Knight, 562 F.3d 1314, 1328 (11th Cir. 2009) (noting that a district court does not
4
Barajas did receive a two-level safety valve reduction despite having gone to trial.
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clearly err by denying a reduction where a defendant attempts to avoid a factual
determination of guilt by challenging the evidence).
VI.
Barajas also argues the district court abused its discretion by failing to
consider U.S.S.G. § 3B1.2 or his conduct in relation to the conduct of other
members of the conspiracy. He contends this failure resulted in a greater than
necessary sentence.
Barajas’s request for a role reduction was made in the alternative to his
initial objection to the amount of drugs attributed to him, which the court
sustained. Because Barajas did not renew his request for a role reduction with
respect to the newly determined drug quantity, there was no plain error on the part
of the district court in not reducing Barajas’s sentence further. See United States
v. Lewis, 492 F.3d 1219, 1222 (11th Cir. 2007) (en banc). Moreover, the record
shows the district court considered the § 3553(a) factors in imposing a within-
guidelines range sentence.
AFFIRMED.
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