Legal Research AI

United States v. Rivera-Rosario

Court: Court of Appeals for the First Circuit
Date filed: 2002-08-07
Citations: 352 F.3d 1
Copy Citations
7 Citing Cases
Combined Opinion
          United States Court of Appeals
                     For the First Circuit


Nos. 00-1545
     00-1546
     00-1575
     00-1577
     00-1700

                   UNITED STATES OF AMERICA,

                           Appellee,
                               v.

                LUIS RIVERA-ROSARIO, A/K/A NEGRI,
               CARLOS COLLAZO-ARROYO, A/K/A CARLI,
                FEDERICO NARANJO-ROSA, A/K/A PAPO,
                  JESÚS TORO-SANTIAGO, A/K/A CHU,
                         ORLANDO HERNÁNDEZ,
                     Defendants, Appellants.



          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO
         [Hon. Héctor M. Laffitte, U.S. District Judge]



                             Before

                   Torruella, Circuit Judge,
                 Coffin, Senior Circuit Judge,
                   and Lipez, Circuit Judge.



    Joseph Waldbaum, for appellant Rivera-Rosario.
    Raymond Rivera-Esteves, for appellant Collazo-Arroyo.
    Linda Backiel, for appellant Naranjo-Rosa.
    Randy Olen, with whom Bevilacqua and Cicilline, was on brief
    for appellant Toro-Santiago.
    Jane Elizabeth Lee, for appellant Hernández.
    Mark Irish, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Assistant United States Attorney, Chief, Criminal Division, and
Thomas F. Klumper, Assistant United States Attorney, were on brief
for appellee.



                         August 7, 2002




                               -2-
            TORRUELLA, Circuit Judge.       The facts of this appeal are

so unique that they could originate only in the District of Puerto

Rico, the sole district within the American federal judiciary where

every judge and almost every juror is fluent in English and

Spanish.

            Defendants-appellants were convicted of conspiracy to

possess with intent to distribute marijuana, cocaine, and heroin.

On appeal, defendants collectively and separately raise a host of

challenges to their convictions and sentences. After reviewing the

issues presented, we find that the district court erred in allowing
evidence to be presented to the jury in Spanish without an English

translation.    Because we conclude that this error undermined the
right to meaningful appellate review for some of the defendants, we
reverse, in part, affirm, in part, and remand the case for action

consistent with this opinion.

                            FACTUAL BACKGROUND

            Acting   upon    a    wiretap   order,   Federal   Bureau    of
Investigation ("FBI") agents intercepted and recorded numerous
telephone conversations among the defendants.          The conversations
were in Spanish and contained references to tires, car jacks,

spurs, tennis shoes, windows, cakes, and ceramic dogs.             Believing

that these terms were coded references to drugs, the government

sought to indict defendants Luis Rivera-Rosario, Carlos Collazo-

Arroyo,    Orlando   Hernández,    Jesús    Toro-Santiago,   and    Federico

Naranjo-Rosa.   On December 10, 1997, a federal grand jury indicted

the defendants on charges of conspiring to possess with intent to

                                     -3-
distribute multi-kilogram quantities of drugs, in violation of 21

U.S.C. § 846.

           At      trial,    the    prosecution's     evidence     against     the
defendants consisted primarily, though not exclusively, of 180

audiotapes, which contain the intercepted conversations.                 Before

introducing these recordings in evidence, the government provided
the district court and defense counsel with a Spanish transcript of

the tapes and an English translation of the Spanish transcript.

The court then asked the jury whether it preferred to listen to the

tapes    while     reading    the   Spanish      transcript   or   the   English

translation.       The jury responded that it wanted to review the

English translation.         At that moment, the prosecution informed the

court that there were not enough English translations for all of
the jurors.       In light of this shortage, the court instructed the

government    to    give     each   juror    a   Spanish   transcript    and    to

distribute a couple of copies of the English translation to the
jury as a whole.

            Before this instruction could be implemented, however,

defense counsel objected on the ground that the English translation

contained so many inaccuracies that the jury should not be allowed

to see it.1      After ascertaining that all of the jurors spoke fluent

Spanish, the court ruled that only the Spanish transcript would be

made available to the jury; the English translation was thus cast

aside.

1
   Defense counsel were provided the English translation of the
Spanish transcript for the first time at trial and, as a result,
did not have an opportunity to object beforehand.

                                       -4-
             For the next four days of trial, the jury heard the

Spanish tapes and read the Spanish transcript. As the tapes played

in open court, the court interpreter did not translate any of the
recordings.      Neither      the    Spanish   transcript       nor   the   English

translation was marked as an exhibit or made part of the record.

             In addition to the tapes, the government relied on the
testimony of four witnesses to meet its burden of proof.                        FBI

Special Agent Carlos Cases testified about the defendants' use of

coded references to drugs in their taped conversations.                       Next,

cooperating witnesses Daniel Sánchez-Ortiz and Alberto Negrón-

Constantino testified that they purchased drugs from Toro-Santiago

in 1995.     Finally, FBI Special Agent Harold Clouse stated that

notebooks     seized   from    Toro-Santiago's      residence         may   contain
references to drug activity.

             The government also introduced several pieces of physical

evidence     inculpating      the     defendants,       including:      (1)    drug
paraphernalia, such as sifters and an electronic scale, seized from

Rivera-Rosario's bedroom; (2) approximately $8,000 in cash found in

Toro-Santiago's    house;      and    (3)   notebooks    from    Toro-Santiago's

residence with notations that allegedly related to illegal drug

activity.2
             On October 26, 1999, the jury convicted the defendants of

conspiracy to possess with intent to distribute illegal narcotics.


2
   In addition, the government introduced a 9-millimeter pistol
seized at the time of Rivera-Rosario's arrest and telephone records
demonstrating that Toro-Santiago made several phone calls to the
Dominican Republic and Venezuela.

                                        -5-
Seeking to reverse their convictions and sentences, the defendants

filed the instant appeal.

                                DISCUSSION

                                      I.

           It is clear, to the point of perfect transparency, that

federal court proceedings must be conducted in English.            Even if

this practice were not intuitively obvious in Puerto Rico, Congress
enacted section 42 of the Jones Act, which requires that "[a]ll

pleadings and proceedings in the United States District Court for

the District of Puerto Rico . . . be conducted in the English

language."     48 U.S.C. § 864 ("Jones Act" or "English language
requirement") (emphasis added); see also United States v. De Jesús

Boria,   518   F.2d   368,   370-71   (1st   Cir.   1975)   (upholding   the

constitutionality of the English language requirement).                  This
requirement is significant not only because it guarantees that the
District of Puerto Rico remains "a viable part of the federal

judicial system," United States v. Valentine, 288 F. Supp. 957, 964

(D.P.R. 1968), but also because it allows this Court to review
evidence in the same language in which it was presented to the
district court.

           The parties do not dispute that a violation of the Jones

Act occurred. Indeed, it would be impossible to contest the issue:

180 tapes were played in Spanish throughout four days of trial

without a single translation. Though we understand, and sympathize

with, the district court's desire not to delay the trial by waiting

for the parties to agree on an acceptable translation, the court's

                                      -6-
ruling ran afoul of the English language requirement.                          We thus

direct our attention to the more contentious and perplexing issue

of how and when to remedy a violation of the English language
requirement.      This issue does not simply involve the correction of

a technical violation; rather, it implicates the more troubling

question    of    how   to   conduct    meaningful          appellate    review     when
substantial portions of the record are in a foreign language.

            In analyzing this matter, we are left without a guiding

star by which to steer our course.             The statute does not provide a

remedy for violations of its mandate; the legislative history

furnishes    no    guidance     on    what     remedial      framework     should     be

employed; and the issue is unprecedented in caselaw.                     Sensing our

predicament, the parties offer several competing frameworks to
address the present violation.

            The     government       argues    that    we    should     rely   on    the

analytical framework of the plain error doctrine to dispose of
defendants' claim because defendants failed to raise it in district

court.3    Ordinarily, before an appellate court can correct an error

not raised at trial, the defendant must demonstrate that: (1) there

was error; (2) the error was plain; (3) the error affected the

defendant's       substantial    rights;       and    (4)    the   error   adversely

impacted the fairness, integrity, or public reputation of the

judicial proceeding.         See United States v. Olano, 507 U.S. 725,

732-36 (1993).       Since the defendants failed to raise their Jones

3
     Though defendants objected to the inaccuracies in the
government's English translation, it is undisputed that they failed
to raise their Jones Act claim before the district court.

                                         -7-
Act claim below, the government concludes that the defendants must

now satisfy the rigors of plain error review to obtain a reversal

of their convictions on this issue.
                Though we applaud the conscientious attorney who objects

to   the        presentation     of    foreign   language     evidence    without

translation, we find that it is the independent duty of the
district court to make sure that "[a]ll pleadings and proceedings

. . . be conducted in the English language."             48 U.S.C. § 864.4      As

such,      we     relieve      the    parties    of   their    usual     duty   to

contemporaneously object.

                We impose this independent duty on the district court for

three important reasons.             First, the Court Reporter Act, 28 U.S.C.

§ 753(b), places a similar independent duty on the judiciary.                   The
Court Reporter Act requires that a reporter "record verbatim or by

mechanical means . . . all proceedings in criminal cases held in

open court."       Id. All of the circuit courts that have examined the

Court Reporter Act have held that it is the responsibility of the

court, not the parties, to enforce the statute.               See United States

v. Nolan, 910 F.2d 1553, 1560 (7th Cir. 1990) ("The duty to comply

with § 753(b) lies with the court, not the parties."); United

States v. Gallo, 763 F.2d 1504, 1530 (6th Cir. 1985) (ruling that

"it is the duty of the court, not the attorneys, to meet the Act’s

4
  Nothing in this opinion, however, should be construed to disturb
the well-settled rule that parties are required to translate all
foreign language documents into English. See Local Rule 108.1 of
the District Court for the District of Puerto Rico.       Once the
parties translate the documents into English and offer them as
evidence, it is the court's duty to ensure that all evidence is
presented in English to the jury and for the record.

                                          -8-
requirements" (emphasis in original)); United States v. Upshaw, 448

F.2d 1218, 1224 n.6 (5th Cir. 1971) (same); Edwards v. United

States, 374 F.2d 24, 26 n.2 (10th Cir. 1967) (same).               Thus, a party
on appeal is not subjected to plain error review for failing to

object below to a violation of the Court Reporter Act.               See United

States v. Brand, 80 F.3d 560, 563 (1st Cir. 1996) (holding that in
order to obtain reversal for a violation of the Court Reporter Act,

appellant must show "specific prejudice to his ability to perfect

an appeal," not plain error, even where there was no objection

below).

            Like    the   Court    Reporter    Act,   the   English      language

provision of the Jones Act requires that evidence be memorialized

in a particular manner.       And just as there is a court reporter to
satisfy the requirements of the Court Reporter Act, there are

several court personnel assigned to the task of ensuring that the

record     is    maintained   in   English.       Court     interpreters      are
responsible for translating all foreign language testimony into

English.        See Court Interpreters Act, 28 U.S.C. §§ 1827-1828.5


5
     The Court       Interpreters     Act     requires    courts    to    appoint
interpreters:

     if the presiding judicial officer determines on such
     officer's own motion or on the motion of a party that
     such party (including a defendant in a criminal case), or
     a witness who may present testimony in such judicial
     proceedings . . . speaks only or primarily a language
     other than the English language . . . so as to inhibit
     such party's comprehension of the proceedings or
     communication with counsel or the presiding judicial
     officer.

28 U.S.C. § 1827(d)(1).

                                      -9-
They are also required to certify that all documents submitted to

the district court have been properly translated into English. See

Local Rule 108.1 of the District Court for the District of Puerto
Rico.   Finally, the clerk of the court is obligated to "refuse to

receive and file the record" of any case removed to district court

that does not contain "an English translation of all papers."   Id.

Specific court personnel, then, are responsible for transcribing

court proceedings, in the case of the Court Reporter Act, and for

ensuring an English language record, in the case of the Jones Act.

We therefore refuse to penalize parties, by subjecting them to a

more rigorous standard of appellate review, for failing to request

what court employees are required by statute to provide.6       Cf.

Upshaw, 448 F.2d at 1224 n.6 ("The mandate of the [Court Reporter]
Act may not be shifted to counsel.").

           Second, the English language requirement in 48 U.S.C.

§ 864 appears under a subchapter entitled "The Judiciary."   All of
the provisions within this subchapter place administrative burdens

on the District of Puerto Rico, ranging from the requirement that

courts deposit collected fees to the credit of the United States,

48 U.S.C. § 868, to the demand that all judicial officials be

citizens of the United States, 48 U.S.C. § 874.    Thus, Congress'

6
   Where, as here, the district court was put on notice of the
foreign language content of the tapes and refused to allow the jury
to review any English language transcript of those tapes, the court
had no other option than to appoint a court interpreter to provide
contemporaneous English translations for the jury and for the
record. Cf. United States v. Arthurs, 73 F.3d 444, 447 (1st Cir.
1996) (noting that when the court is on notice of language
difficulties, the court has a duty to inquire into the matter and,
if necessary, to provide an interpreter).

                               -10-
placement of the English language requirement alongside these

statutorily-mandated court responsibilities evinces an intent to

place an independent duty on courts to ensure that all evidence is
presented in English.

             Finally, given how obvious Jones Act violations are,

there is no need for contemporaneous party objections.                In the
instant case, for example, the court knew that foreign language

evidence was being presented without translation: approximately 180

Spanish tapes were played in open court throughout four days of

trial    without      translation.      Moreover,    the   district    court

specifically approved of this course of action:

             During the Hernández case, the Supreme Court
             says that the jury must -- all of the jury
             must listen to the English version [of the
             evidence], not the Spanish version.      That
             [case] was in New York . . . . where some
             jurors did not speak Spanish, and therefore,
             the Supreme Court has ruled that every juror
             must listen to the same evidence. Since all
             the jurors speak Spanish [in this case], then
             I think we are safe.7

The court was thus on notice of the problem, had a duty to remedy

it, and had the personnel necessary to implement the required
solution.    In fact, the court recognized this duty, only too late,

when    it   called    upon   court   interpreters   to    provide    English




7
   The district court was referring to Hernández v. New York, 500
U.S. 352 (1991), in which the Supreme Court held that a prosecutor
did not violate the Equal Protection Clause when he used his
peremptory strikes to remove two Spanish-speaking potential jurors
for fear that they would not defer to the official translation of
the anticipated Spanish language testimony.

                                      -11-
translations of a few Spanish words for the jury.8          In sum, we do

not think a contemporaneous objection is needed to remind the

district court that it is an English language court.9        We therefore
decline the government's invitation to employ plain error review.

          In   the    alternative,    the   government   argues   that   the

violation of the English language requirement can be remedied by
simply supplementing the record on appeal to include a certified

English translation of the Spanish tapes.           See Fed. R. App. P.

10(e) (authorizing appellate courts to supplement the record to

correct   omissions    or   misstatements).       Though    tantalizingly

efficient, this proposal is beset with procedural and substantive

difficulties that ultimately make it unappealing.

8
   Had the district court adopted this practice with all of the
Spanish language evidence, there would be no disputed English
translation on appeal.
9
    Though defense counsel acquiesced to the district court's
decision to discard the English language translation, and may have
even encouraged it, this fact is inconsequential. The district
court has an independent duty to faithfully uphold the English
language requirement. This responsibility is too important to be
discharged whenever a party requests that the proceedings be
conducted in a language other than English.
     Though a party may forfeit an objection to the district
court's failure to follow the Court Reporter Act by acquiescing to
the court's procedure, see United States v. Ellzey, 874 F.2d 324,
330 (6th Cir. 1989), we cannot extend such a procedure to cases
involving the English language requirement. The policy interest in
keeping the District of Puerto Rico as an integrated part of the
federal judiciary is too great to allow parties to convert that
court into a Spanish language court at their whim. Furthermore,
were we to adopt such a practice, attorneys who are more
comfortable speaking in Spanish would routinely encourage courts to
violate the English language requirement, knowing that the record
would simply be translated on appeal. Thus, unlike the rare and
inadvertent acquiescence to a court's violation of the Court
Reporter Act, party acquiescence to violations of the English
language requirement would effectively obliterate the requirements
of the Jones Act.

                                     -12-
          First, the circumstances surrounding the government's

request to supplement the record do not even fall within the

purview of Rule 10(e).   In Belber v. Lipson, 905 F.2d 549, 551 n.1
(1st Cir. 1990), we refused the appellant's request to expand the

record on appeal to include a deposition transcript. In so ruling,

we noted that "[a] 10(e) motion is designed to only supplement the
record on appeal so that it accurately reflects what occurred

before the district court.     It is not a procedure for putting

additional evidence, no matter how relevant, before the court of

appeals that was not before the district court."   Id.

          Like the appellant in Belber, the government is seeking

to expand the record impermissibly. The trial judge never reviewed

the English translation that the government now seeks to introduce;
the jury neither heard nor read it; and the translation was never

marked as an exhibit or filed in district court.      Furthermore,

defendants challenge the government's translation, which they claim
is one-sided and inaccurate.   Under these circumstances, we cannot

conclude that the government is simply attempting to "supplement

the record on appeal so that it accurately reflects what occurred

before the district court."    We therefore reject the government's

efforts to expand the record to include the English translation.10

10
   By contrast, in United States v. Andiarena, 823 F.2d 673, 676-77
(1st Cir. 1987), we affirmed a district court's decision to expand
the record on appeal to include a transcript of a tape since the
tape had been played at trial. Because the jury heard the tape,
and since the supplemented transcript was merely a written version
of what the jury heard, we found that the district court
"correctly" granted the motion to expand the record. Id.
     The facts in Andiarena are conspicuously different from those
of the instant appeal because the English language transcript that

                                -13-
            Second, even if we were authorized to expand the record

to include an English translation on appeal, the particular facts

of this appeal make doing so a perilous task.         The parties disagree
on how to translate certain phrases, and it is not our prerogative

to resolve such disputes.        See, e.g.,    United States v. Rengifo,

789 F.2d 975, 983 (1st Cir. 1986) (affirming the jury's authority
to determine which of two competing translations is correct); Cruz,

765 F.2d at 1023 n.4 (stating that interpretation of a foreign

language translation presents a jury question).            Translating the

evidence now would also put us at risk of assessing evidence in a

manner     different   from      or    inconsistent    with     the    jury's

interpretation.     Cf. Bordas & Co. v. Pizarro-Serrano, 314 F.2d 291

(1st Cir. 1963) (noting that "what the interpreter states in the
record . . . must control both the trial and the appeal").

            Finally, the government's proposal to remedy violations

of the English language requirement by simply translating the
Spanish tapes on appeal is too dismissive of the Jones Act.

Adopting    the   government's    proposal    would   convert   the   English

language requirement into an English language preference; it would

conceivably enable district courts to conduct entire trials in

Spanish, only to have the record translated on appeal.           We decline

the invitation to adopt a policy that may lead to such unorthodox

practices.



the government is seeking to introduce now is not merely a written
version of what the jury heard. Rather, the transcript was created
by the prosecution and is allegedly one-sided and inaccurate; it is
thus a disputed translation of what the jury heard.

                                      -14-
          Having determined that the Spanish language evidence

cannot be translated on appeal, we are left with only the English

language evidence to review.    Thus, when a district court violates
the English language requirement and allows non-English language

evidence to be admitted without translation, both parties are

prejudiced by the fact that the appellate court cannot review the
non-English language evidence.         There may be times when this

prejudice is inconsequential -- for example, when the untranslated

evidence is cumulative or when the untranslated evidence is not

implicated by the issues on appeal.     However, an appellant's right

to meaningful appellate review will be undermined by a violation of

the English language requirement whenever the untranslated evidence

has the potential to affect the disposition of an issue on appeal.
          Our analysis of the harms that result from a violation of

the Jones Act has led us to discover the sought-after remedy:

violations of the English language requirement will constitute
reversible error whenever the appellant can demonstrate that the

untranslated evidence has the potential to affect the disposition

of an issue raised on appeal.    Absent that potential, there is no

prejudice from the violation of the Jones Act that warrants relief.

                                 II.

          To apply this newly-minted remedial framework, we engage
in a tripartite analysis: (1) we identify the issues raised on

appeal that implicate the untranslated evidence; (2) we determine
whether there is sufficient evidence in the English language record

to affirm the lower court's adjudication of these issues; and (3)

                                 -15-
if there is sufficient English language evidence to affirm, we

determine whether the untranslated evidence has the potential to

affect that conclusion.      Applying this framework to the instant
case, we find that the right to meaningful appellate review has

been undermined for some, but not all, of the defendants.11

A.   Hernández's Sufficiency Claim

            Appellant Hernández argues that there is insufficient

evidence in the record to sustain his conviction. "To prove the

elements of the crime of conspiracy, the government must show the

existence   of   a   conspiracy,   the    defendant's   knowledge   of   the

conspiracy, and the defendant's voluntary participation in the

conspiracy."     United States v. Gómez-Pabón, 911 F.2d 847, 852 (1st

Cir. 1990).      More specifically, to establish that a defendant
participated in the conspiracy, the government is required to


11
    Only two of the five appellants raised this issue on appeal.
Because violations of the English language requirement are so
severe in that they have the potential to eviscerate a party's
right to meaningful appellate review, and considering that the
district court has an independent duty to ensure that court
proceedings are conducted in English, we review this claim, sua
sponte, as it pertains to all of the appellants. See, e.g., United
States v. Atkinson, 297 U.S. 157, 160 (1936) ("In exceptional
cases, especially in criminal cases, appellate courts, in the
public interest, may, of their own motion, notice errors to which
no exception has been taken, if the errors are obvious, or if they
otherwise affect the fairness, integrity or public reputation of
judicial proceedings."); see also Molecular Tech. Corp. v.
Valentine, 925 F.2d 910, 920-21 (6th Cir. 1991) ("This court may,
in its discretion, consider clear errors in the proceedings below
in an unusual case sua sponte regardless of the inattentiveness of
the court or the parties.").
      Not only is the error here an obvious one, but it also
threatens to undermine the "fairness, integrity or public
reputation of judicial proceedings" by having this Court affirm
appellants' convictions without being able to review all of the
evidence that was presented in the district court.

                                   -16-
demonstrate two kinds of intent: "intent to agree and intent to

commit the substantive offense." United States v. Rivera-Santiago,

872 F.2d 1073, 1079 (1st Cir. 1989).
           Hernández claims that the government failed to meet its

burden of proof at trial.     Though he admits to associating himself

with the conspirators, Hernández insists that he did not intend to
commit the underlying drug offense.         See, e.g., Gómez-Pabón, 911

F.2d at 853 (stating that mere association with conspirators does

not establish an intent to participate in the conspiracy).

           In analyzing Hernández's claim, "[o]ur review of the

evidence   must   be   made   in   the   light   most   favorable   to   the

government, drawing all legitimate inferences and resolving all

credibility determinations in favor of the verdict." United States

v. Angiulo, 897 F.2d 1169, 1197 (1st Cir. 1990).          After examining

the English language evidence in the light most favorable to the

verdict, we find that there is sufficient evidence in the English
language record to support Hernández's conviction.

           At trial, Agent Cases testified that on several occasions
Hernández was actively involved in the sale or purchase of illegal

narcotics.   In particular, Agent Cases testified to at least three

incriminating telephone calls that involved Hernández: (1) on May

12, 1997, Hernández and another co-conspirator had a telephone

conversation in which Hernández was instructed in code to purchase

drugs; (2) three days later, co-defendant Rivera-Rosario told

Hernández, in coded language, which sale price to assign to a

specific quantity of drugs; and (3) on May 19, 1997, Hernández


                                    -17-
contacted a co-conspirator and informed him in coded terms that

they were in the process of receiving a load of drugs.

            Viewed in the light most favorable to the verdict, the
testimony     of    Agent     Cases    demonstrates    Hernández's      active

participation in the conspiracy.          Hernández was familiar with the

coded references to drugs and prices, helped to assign prices to
the narcotics, and purchased drugs for the conspiracy.                   Taken

together, the evidence establishes that the appellant was a trusted

confidante    who   was     familiar   with   the   inner    workings   of   the

conspiracy and advanced its illegal purpose.                His claim to have

merely associated with the conspirators is thus undermined by the

English language evidence.

             On its face, it may seem odd that the limited prosecution
evidence we have been able to review could be sufficient to support

Hernández's conviction, but that additional evidence from the

prosecution, if we could review it, might undermine our confidence
in that conclusion.         However, we are routinely required to review

the entire record of the proceedings below before deciding whether

the evidence is sufficient to support a conviction; we do not

simply read the record until we have identified sufficient evidence

and then stop reading at that point.           Moreover, this would not be

the first time that the government had undermined its own position

with the presentation of additional evidence that cast doubt on

what would otherwise be a sustainable case on sufficiency of the

evidence review.




                                       -18-
            The appellant makes three arguments which, viewed in the

aggregate, convince this Court that the untranslated evidence has

the potential to affect our conclusion that there is sufficient
evidence    to   support     the    appellant's   conviction.         First,    the

quantity of untranslated evidence in this case is overwhelming: 180

tapes,     totaling   more    than     2,000    pages     of    transcripts,    are
exclusively in Spanish.            Second, the Spanish tapes are, as the

government concedes, the "gravamen" of its case; they are crucial

to determining the nature and extent of the charged conspiracy.

Third, Hernández argues that the Spanish tapes, at most, reveal

that he knew of the illegal drug scheme and that he socialized with

the conspirators, which is insufficient to support his conviction.

See United States v. Hyson, 721 F.2d 856, 862 (1st Cir. 1983)

(ruling that associating with three conspirators and being aware of

the presence     of   drugs    in    their    apartment    is    insufficient   to

establish a willingness to participate in and advance the purpose
of the conspiracy).

            Hernández's claim of innocence presents a challenging

issue to this Court, as it requires that we determine whether his

conduct constitutes mere presence or culpable presence.                 In United

States v. Ortiz, 966 F.2d 707 (1st Cir. 1992), we explained the

inherent complexity of such claims:

            On the one hand, mere association between the
            principal and those accused of aiding and
            abetting is not sufficient to establish guilt;
            nor is mere presence at the scene and
            knowledge that a crime was to be committed
            sufficient to establish aiding and abetting.
            On the other hand, there are circumstances
            where presence itself implies participation --

                                       -19-
              as where a 250-pound bruiser stands silently
              by during an extortion attempt, or a companion
              stands by during a robbery, ready to sound a
              warning or give other aid if required.      In
              sum, the line that separates mere presence
              from culpable presence is a thin one, often
              difficult to plot.

Id. at 711-712 (internal citations and quotations omitted).12

              The evidence necessary to resolve this issue as it
relates to Hernández's appeal lies buried in the Spanish tapes,

which are beyond our scope of review.        It is difficult to tell from

Agent Cases' brief snippets of the intercepted conversations how

much the appellant knew about the conspiracy and how much he

participated in it.        For instance, though Agent Cases testified

that a co-conspirator told Hernández to "get some drugs," Agent

Cases failed to explain Hernández's reaction to this instruction.
On the basis of the English language record, then, we do not know

whether Hernández understood what was he was being told, whether he

agreed   to    get   the   drugs,   or   whether   he   refused   to   do   so.
Similarly, Agent Cases testified that on May 19, 1997, Hernández

told a co-conspirator that they were in the process of receiving a

drug load.       However, Hernández does not include himself in the

statement.     In other words, the appellant does not say "we" are in

the process of receiving a drug load, but rather "they" are in the

process of receiving a drug load.            This statement corroborates




12
   Though Ortiz dealt with the crime of aiding and abetting, its
general principles apply with equal force to the crime of
conspiracy. See United States v. Aponte Suarez, 905 F.2d 483, 491
(1st Cir. 1990).

                                     -20-
Hernández's claim that he knew of the illegal drug scheme but did

not actively participate in it.

            Furthermore, Hernandez's claim that he was convicted for
merely being associated with the co-defendants is corroborated by

the prosecution's tactics at trial.            The prosecution repeatedly

tried to link Hernández to the conspiracy by virtue of his mere
presence.    For example, the prosecution stated, "This call is

between -- not [Hernández], but it's between the pertinent parties.

It's not between [Hernández], but it is [Hernández]."                     And on

another occasion the prosecutor again revealed his tactic, "And

even   though   [Hernández]      is   not    --    he's     not    part   of   the

incriminating   call,     he's   there   and      he's   present    during     this

telephone conversation."
            Given   the   appellant's    plausible        claim   of   innocence,

combined with the sheer volume of the untranslated evidence and its

importance to the government's case, we find that Hernández has
demonstrated that the untranslated evidence has the potential to

affect our conclusion that there is sufficient evidence to support

his conviction. We therefore vacate his conviction and remand his

case for a new trial.13




13
   Our ruling should in no way be construed as establishing a per
se rule that Jones Act violations constitute reversible error.
Rather, we hold that the violation of the English language
requirement in this case has the potential to affect our
disposition of the appeal, in light of the size of the untranslated
evidence, its importance to the prosecution's case, and the
appellant's plausible claim of innocence.

                                      -21-
B.   Toro-Santiago's Sufficiency Challenge

            Toro-Santiago also challenges the sufficiency of the

evidence upon which his conviction rests. Like Hernández, Toro-
Santiago argues that the government failed to establish his active

participation in the drug conspiracy.

            After reviewing the English language evidence presented
against the appellant, we again find that there is sufficient

evidence in the English language record to sustain Toro-Santiago's

conviction.    First, Agent Cases testified to several telephone

conversations that Toro-Santiago had with co-defendant Naranjo-Rosa

in which they discussed their drug trafficking activities, using

terms such as "hydraulic oil" and "bits" to refer to drugs and

"madera" to refer to money.      Second, Special Agent Harold Clouse
testified that the notebooks seized from Toro-Santiago's residence

contained notations "in the format of those that would be kept by

an illegitimate heroin distribution network."         Lastly, cooperating
witnesses   Daniel    Sánchez-Ortiz   and   Alberto   Negrón-Constantino

testified that they purchased drugs from Toro-Santiago during the

period of the charged conspiracy.

            Drawing   all   legitimate   inferences    in   favor   of   the

prosecution, the evidence establishes that Toro-Santiago was an

active member of the drug conspiracy who was familiar with its

coded drug references, kept records of its dealings, and furthered

its purpose by selling drugs to two of the government's witnesses.

See Aponte-Suarez, 905 F.2d at 490 ("A conspiratorial agreement may

be proven by circumstantial evidence, and the plan may be inferred


                                  -22-
from a development and collation of circumstances." (internal

citations omitted)).

          We therefore find sufficient evidence in the English
language record to sustain Toro-Santiago's conviction; however, in

order to actually affirm appellant's conviction, we must conclude

that the untranslated evidence does not have the potential to
affect our disposition of this issue.   Much to the prosecution's

chagrin, we cannot so conclude.

          As noted, the size and importance of the untranslated

evidence weigh in favor of concluding that the tapes have the

potential to affect our sufficiency determination.       There is,

however, one additional argument which we find conclusive: in much

of Agent Cases' testimony of Toro-Santiago's conversations, it is
unclear who is actually making the drug references and what, if

anything, is being planned.    For example, after listening to a

Spanish language conversation between Toro-Santiago and Naranjo-
Rosa, Agent Cases testified that the references on the tape to

"formicas" and "10 by 10s" were actually coded references to drugs.

The problem, however, is that Agent Cases does not identify Toro-

Santiago as the person who used the coded phrases, nor does he

explain whether a sale or purchase was being arranged.   Though we

can infer based on the English language evidence that Toro-Santiago

actively participated in these drug discussions, that inference

could not be drawn if contradicted by evidence in the tapes.




                               -23-
               According to the appellant, the Spanish tapes demonstrate

that he was aware of the illegal drug scheme, but that he did not

actively participate in it.           See Aponte-Suarez, 905 F.2d at 491
   (ruling that mere knowledge of a drug importation scheme is

insufficient to establish guilt).              If the Spanish tapes were to

corroborate Toro-Santiago's claim by demonstrating that it was
Naranjo-Rosa making most of the coded references to drugs, it would

become    more     difficult    to    claim   that    Toro-Santiago      actively

participated in the conspiracy.

               The force of this argument is compounded by the fact that

the Spanish tapes are the only reliable connection between Toro-

Santiago and the conspiracy.          Neither the notebooks found in Toro-

Santiago's residence nor the cooperating witnesses specifically
connected the appellant to the charged conspiracy. With respect to

the notebooks, there was no evidence offered regarding who authored

them.    Moreover, Agent Clouse admitted in two prior FBI reports
that    "the    notations    lack    sufficient      class    and/or   individual

characteristics to make a determination as to the exact purpose

and/or function of these records." With respect to the cooperating

witnesses, they testified to purchasing drugs from Toro-Santiago in

1995.    Though this testimony demonstrates that Toro-Santiago may

have sold drugs to individual consumers, it does not connect him

with any of the other conspirators or to the charges in the

indictment.

               Given   the   size    and   importance    of    the   untranslated

evidence, compounded by the fact that Toro-Santiago's claim of


                                       -24-
innocence    is   plausible        in   light   of   Agent   Cases'    ambiguous

testimony, we find that the untranslated evidence has the potential

to affect our resolution of this issue. We therefore reverse Toro-
Santiago's conviction and remand his case for a new trial.

C.     Naranjo-Rosa's Sentence

            Naranjo-Rosa argues that there is insufficient evidence
in the record to support the sentence the district court imposed on

him.      At sentencing, the court attributed 4,000 kilograms of

marijuana, or 20 kilograms of cocaine,14 to Naranjo-Rosa, resulting
in a base offense level of 34 under the Sentencing Guidelines.

According to the appellant, this sentence is unsupported by the

Spanish tapes.

             In analyzing Naranjo-Rosa's claim, we review for clear
error.     See United States v. Lewis, 40 F.3d 1325, 1343 (1st Cir.

1994). After employing this standard of review, we find that there

is sufficient evidence in the English language record to affirm
Naranjo-Rosa's sentence.           There are at least eleven conversations

during April      and   May   of    1997   in   which   Naranjo-Rosa    directly
coordinated the sale or purchase of more than 20 kilograms of

cocaine.     On the basis of the English language evidence, then, we

must conclude that the district court did not err in its sentencing

determination.

             Having determined that there is sufficient evidence in

the English language record to affirm Naranjo-Rosa's sentence, we

14
   The conversion of marijuana amounts to cocaine amounts is based
on the formula set forth in the Sentencing Guidelines.         See
U.S.S.G. § 2D1.1 cmt. n.10.

                                        -25-
examine whether the untranslated evidence has the potential to

affect our conclusion. The appellant argues that the Spanish tapes

do not support the district court's determination.   For instance,
he points out that the Spanish tape upon which the district court

relied to attribute "1200 pounds of marijuana" to him does not even

mention the number 12 or 1200.    In fact, Naranjo-Rosa argues that
the only number cited in that tape is "one-thousand two," which

refers not to pounds of marijuana, but to a drug price.

          It is undisputed that the district court calculated the

drug quantity attributable to Naranjo-Rosa by relying exclusively

on the Spanish language tapes:

          But let me explain and justify my sentence.
          In this case, the explicit amounts that can be
          pinpointed in the record, I will explain them
          and I will point them out.        Government's
          Exhibit 2. . . . Also Government's Exhibit 4.
          . . . Also Exhibit 44. . . . Also there is
          Exhibit 55 . . . .

Since the district court relied exclusively on the Spanish tapes to
calculate appellant's sentence, there is no way for us to determine

whether its recollection of the Spanish tapes is flawed.
          More importantly, we are unable to review whether Agent

Cases' testimony regarding drug quantities accurately reflects the

content of the Spanish tapes.       Because we cannot examine the

Spanish tapes to make sure that they are consistent with the

English language evidence supporting the district court's drug

quantity determination, we must conclude that the Spanish tapes

have the potential to affect our disposition of this issue.




                                 -26-
               For the purposes of determining the appropriate sentence

on remand, the district court is not limited in the same manner as

we are regarding the sufficiency of the evidence to establish
guilt, which depends only on the English language evidence heard by

the jury.       Rather, the district court can, and should, review a

certified English translation of the Spanish tapes to ensure that
the    tapes    corroborate         Agent   Cases'       testimony      regarding     drug

quantities.       See, e.g., United States v. Berzon, 941 F.2d 8, 21

(1st    Cir.    1991)    ("Generally,        there       is   no   limitation    on    the

information which a court may consider in sentencing other than

that the information bear sufficient indicia of reliability to

support    its     probable         accuracy,      and    evidence      not   ordinarily

admissible       under        the   rules    of     evidence       at   trial   may     be
considered.").       Only then will the Spanish tapes be stripped of

their    potential       to    undermine     the    district       court's    sentencing

determination. With these instructions, we remand the case for re-
sentencing.15

D.     Rivera-Rosario's Sentencing Challenge

               Similarly, appellant Rivera-Rosario argues that there is

insufficient evidence in the record to support the district court's

attribution of 150 kilograms of cocaine to him.                          Again, though

there is sufficient evidence in the English language record to

affirm appellant's sentence, we find that the untranslated evidence

has the potential to affect our conclusion because we are unable to

15
    Because our resolution of this issue calls for re-sentencing,
it is unnecessary to address any of the other arguments advanced by
Naranjo-Rosa regarding his sentence.

                                            -27-
determine whether Agent Cases' testimony is an accurate reflection

of the content of the Spanish tapes.   We therefore remand the case

for re-sentencing.16

                                III.

            Returning to charted waters, we direct our attention to

the challenges Collazo-Arroyo, Rivera-Rosario, and Naranjo-Rosa

raise to their convictions that do not implicate the untranslated

evidence.

A.   Collazo-Arroyo's Voice Recording Challenge

            Collazo-Arroyo's sole argument on appeal is that the
district court erred in permitting the jury to hear an exemplar of

his voice that was recorded without his permission when he was in
prison.17    Collazo-Arroyo admits that he signed a consent form
allowing the government to monitor his telephone calls from prison;

however, he argues that he did not consent to having his voice
recorded for the purpose of providing an exemplar at trial.18

Because the government allegedly transcended the scope of his

consent, he concludes that his Fourth Amendment rights have been
violated.




16
    Because our resolution of this issue calls for re-sentencing,
it is unnecessary to address any of the other arguments advanced by
Rivera-Rosario regarding his sentence.
17
     Rivera-Rosario joins Collazo-Arroyo in making this argument.
18
   Rather, the consent form Collazo-Arroyo signed indicated that
his calls would be monitored only to "preserve the security and
orderly management of the [prison] and to protect the public."

                                -28-
            Though Collazo-Arroyo objected to the admission of the

exemplar at trial, he failed to file a pretrial motion to suppress

the recordings, as required by Federal Rule of Criminal Procedure
12(b)(3).    Rule 12(b)(3)'s mandate that all motions to suppress be

presented    prior     to    trial    is       based   on    the    concern     that

"interrupt[ing]      the    course   of    the    trial     for    such   auxiliary
inquiries impedes the momentum of the main proceeding and breaks

the continuity of the jury's attention." Nardone v. United States,

308 U.S. 338, 342 (1939); see also Jones v. United States, 362 U.S.

257, 264 (1960) (stating that this rule deals "with carrying out an

important social policy and not a narrow, finicky procedural

requirement"). Appellant's failure to comply with the requirements

of   Rule   12(b)(3)   operates      as    a    forfeiture    to    challenge    the
subsequent admission of the evidence during the trial. See Fed. R.

Crim. P. 12(f).19

            Even though the district court ultimately addressed the
forfeited issue on the merits, we enforce Rule 12(f) forfeitures

"unless the appellant can show 'cause' for failing to raise it in
a pretrial motion."        United States v. Bashorun, 225 F.3d 9, 14 (1st

Cir. 2000) (quoting United States v. Núñez, 19 F.3d 719, 722 (1st

Cir. 1994)).    Collazo-Arroyo has failed to offer any justification

for his belated request to suppress the voice recordings.                        We

therefore conclude that the voice exemplar was properly admitted at

trial. Since the untranslated evidence does not have the potential


19
   The district court did not grant Collazo-Arroyo relief from his
Rule 12(f) forfeiture.

                                      -29-
to affect our resolution of this issue, we affirm Collazo-Arroyo's

conviction.

B.   Rivera-Rosario's Challenges to the District Court's Rulings

           Rivera-Rosario    challenges      two   rulings   made    by   the

district court in an effort to expose reversible error.             First, he

claims that the district court erred in admitting the expert
testimony of Agent Cases.       Second, he argues that the district

court's   decision   to     admit    Agent    Cases'   expert       testimony

unconstitutionally shifted the burden of proof to the defense.

Because we do not find any reversible error in the district court's

rulings, we reject appellant's arguments.

           Rivera-Rosario's claim that the district court erred in

admitting Agent Cases' testimony rests on the premise that Agent
Cases was unqualified to provide expert testimony.           According to

the appellant, Agent Cases did not have the training or expertise

necessary to give accurate interpretations of the coded drug
phrases. See Fed. R. Evid. 702 (permitting use of expert testimony

only if "scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence").

           Normally, we would review a district court's decision to

qualify an expert witness for manifest abuse of discretion.               See

United States v. Alzanki, 54 F.3d 994, 1005 (1st Cir. 1995).

However, where, as here, the appellant failed to raise this issue

in the district court, we review for plain error.             See Fed. R.

Crim. P. 52(b); Olano, 507 U.S. at 732-33.              The plain error

standard requires that the appellant demonstrate that: (1) there


                                    -30-
was error; (2) it was plain; (3) it affected the substantial rights

of the accused; and (4) the error affected the "fairness, integrity

or public reputation of judicial proceedings."         Olano, 507 U.S. at
732-36.     In this case, the appellant cannot even surmount the

lowest hurdle of the four-prong test -- namely, demonstrating that

an error occurred.
            Agent Cases' qualifications as a drug expert in coded

conversations are, in fact, sufficient.            See generally Richmond

Steel Inc. v. Puerto Rican Am. Ins. Co., 954 F.2d 19, 20 (1st Cir.

1992) ("Trial judges have broad discretionary powers in determining

the qualification, and thus, admissibility, of expert witnesses.").

At the time of the trial, Cases had been working as an agent with

the   FBI   for   approximately   eight   years,   specializing   in   drug
investigations in Texas and Puerto Rico.           During this period of

time, he conducted approximately twenty-five investigations that

involved interviewing drug trafficking informants and cooperating
witnesses, securing wiretap orders, and monitoring intercepted

conversations. Many of these intercepted conversations, which were

in English and Spanish, involved heavily coded references to drugs

and narcotic trafficking.     See United States v. Hoffman, 832 F.2d

1299, 1310 (1st Cir. 1987) ("In a rough-and-ready field such as

[drug trafficking], experience is likely the best teacher.").           In

addition to his professional experience, Agent Cases received FBI

training on how to conduct drug investigations and how to decipher

coded references.     Given Agent Cases' experience and training, we




                                   -31-
conclude that the district court did not err in qualifying him as

an expert.

                Second, Rivera-Rosario argues that the admission of Agent
Cases' expert testimony unconstitutionally shifted the burden of

proof to the defendant.             More specifically, appellant argues that

since Agent Cases testified both as a fact witness (offering
details of his investigation of the defendants) and as an expert

witness         (providing    his     interpretation     of    the    coded     drug

references), the jury was given the false impression that the

agent's opinion regarding the criminal nature of the defendants'

coded language was based on his investigation of the defendants,

rather than on generalizations from other experiences.                     According

to Rivera-Rosario, he was forced to correct this false impression,
thereby unconstitutionally shifting the burden of proof onto the

defense.

                Even if we were to accept the logic of the appellant's
argument, the facts do not support his claim.                    Throughout his

direct examination, Agent Cases was clear that his interpretation

of   the    defendants'      coded    language   was   based   on    his    previous

experience.        For instance, when asked to explain why he believed

that the defendants' use of the word "checks" was a reference to

cash,      he    responded,    "I     have   extensive   experience        in   money

laundering investigations, and in particular, there was one case

that I worked on where [the word "checks"] was very commonly used

by the drug traffickers to refer to . . . [cash]."                     Given this

candor, there was no need for the defendant to elicit any evidence


                                         -32-
regarding the basis of Agent Cases' testimony.            Because the burden

of proof did not migrate to the defense, we do not discern any

reversible error and affirm Rivera-Rosario's conviction.20


C.   Naranjo-Rosa's Challenge to the Wiretap Evidence

          Naranjo-Rosa claims that the district court erred in
denying his motion to suppress the intercepted conversations.

Specifically, he argues that the government's application for a

wiretap was defective in that it failed to satisfy the necessity

requirement,     pursuant   to   18   U.S.C.     §   2518(1)(c).21   In   the

alternative, Naranjo-Rosa claims that the district court erred in

denying him an evidentiary hearing on the government's application

for a wiretap.    Finding no reversible error, we reject appellant’s
arguments.

           First, Naranjo-Rosa claims that the government failed to

meet the necessity requirement set forth in 18 U.S.C. § 2518(1)(c),


20
    In addition, appellant argues that this Court should adopt a
rule that prevents district courts, when weighing a motion for
acquittal under Rule 29, from considering the opinion testimony of
government agents who interpret allegedly coded conversations.
Because Rivera-Rosario did not raise this issue below, we review
for plain error. See United States v. DeLeón, 187 F.3d 60, 65 (1st
Cir. 1999). Appellant concedes that his argument is based on a
"change in the law." As such, his claim cannot survive plain error
review, as he is unable to demonstrate that his argument rests on
an "obvious or clear [error] under current law." Id.; see also
United States v. Turman, 122 F.3d 1167, 1171 (9th Cir. 1997) ("If
the district judge would have to be clairvoyant to detect the error
(perhaps by foreseeing yet undecided court of appeals or Supreme
Court caselaw) the error is not plain and defendant must object as
a condition for having it considered on appeal.").
21
     Naranjo-Rosa was joined by              appellants   Toro-Santiago   and
Hernández in raising this issue.

                                      -33-
which is a precondition to obtaining a wiretap. Section 2518(1)(c)

requires that a wiretap application include "a full and complete

statement as to whether or not other investigative procedures have
been tried and failed or why they reasonably appear to be unlikely

to succeed if tried or to be too dangerous."              United States v.

Hoffman, 832 F.2d 1299, 1306 (1st Cir. 1987) (quoting 18 U.S.C. §
2518(1)(c)).       The necessity requirement was "designed to assure

that wiretapping is not resorted to in situations where traditional

investigative      techniques   would   suffice    to   expose    the    crime."

United States v. Kahn, 415 U.S. 143, 153 n.12 (1974).

            According   to   Naranjo-Rosa,   the    government      failed    to

satisfy     this    requirement    because   traditional         investigative

techniques had not been exhausted before the government sought the
wiretap.     The appellant claims that the government could have

uncovered    more    information    about    the    conspiracy      by     using

confidential informants to set up surveillance and to introduce
undercover agents into the conspiracy.22          Based on these neglected

investigatory tactics, Naranjo-Rosa concludes that the government's

reliance on wiretapping was premature.

            Contrary to the appellant's assertions, however, the

government is not required to show that other investigatory methods

have been completely unsuccessful, see United States v. Abou-Saada,

785 F.2d 1, 11 (1st Cir. 1986), nor is the government forced to run

outlandish risks or to exhaust every conceivable alternative before

22
    Appellant claims that the government could have relied on a
cooperating witness named Ruiz-Adorno to infiltrate the conspiracy
or to help undercover agents do the same.

                                    -34-
resorting to electronic surveillance, see Hoffman, 832 F.2d at

1306.    It is only required to show that it has made "a reasonable

good    faith    effort    to    run    the     gamut   of     normal      investigative
procedures before resorting to means so intrusive as electronic

interception of telephone calls."                Id.; see also United States v.

Edwards, 69 F.3d 419, 429 (10th Cir. 1995) ("[L]aw enforcement
officials    are    not    required       to    exhaust      all    other    conceivable

investigative       procedures         before     resorting         to     wiretapping."

(citations and internal quotation marks omitted)).23
            In this case we are satisfied with the government’s

showing of necessity.           The government's application for a wiretap

describes in detail the surveillance techniques which had been

tried, such as physical surveillance, pen registers, closed-circuit
television      cameras,        records    checks,       and       debriefings.      The

government also described all the reasons why these tactics had

been ineffective or limited in use.                     Moreover, the application
lists other available methods which were not viable options,

including the use of grand jury subpoenas and search warrants,

which    would     have    alerted        the    conspirators         to    the   ongoing

investigation.      Not only is the government's application complete,

but it also demonstrates the significant lengths to which the

23
     When reviewing a wiretap application, "[i]t is not our
province to engage in de novo review of an application; instead, we
test it in a practical and commonsense manner to determine whether
the facts which it sets forth are 'minimally adequate' to support
the findings made by the issuing judge." United States v. Cole,
807 F.2d 262, 268 (1st Cir. 1986) (quoting U.S. v. Bynum, 763 F.2d
474, 476 (1st Cir.1985)) (internal quotation marks and citations
omitted).

                                          -35-
government went before resorting to electronic surveillance.                See

e.g., United States v. Davis, 940 F.2d 722, 728-29 (1st Cir. 1991)

(holding that the necessity requirement was shown even though
government had not attempted to use search warrants, pen registers,

or undercover agents).

           In response, Naranjo-Rosa claims that the evidence that
the government obtained from less intrusive investigatory methods

provided sufficient information about the target organization,

thereby eliminating the need for wiretaps. Though the government's

less intrusive methods had provided some valuable assistance in the

investigation, much of the conspiracy's scope and dealings were

still undisclosed.     Specifically, the government was still unaware

of the identity of many of the conspiracy's members and the
supplier of its drugs.          Moreover, at the time of the application,

the   government     had   no    real   knowledge    of   the   organizational

structure of the drug conspiracy.              Under these circumstances, it
was sensible for the district court to allow the government to

employ electronic surveillance in order to uncover the complete

range of operations of the target organization.              Cf. United States

v. Scibelli, 549 F.2d 222, 227 (1st Cir. 1977) ("A large-scale

gambling conspiracy may by its structure and modus operandi give

rise to a reasonable inference that other investigative procedures

. . . reasonably appear to be unlikely to succeed if tried."

(internal citations omitted)).

           In the alternative, Naranjo-Rosa claims that the district

court   erred   in    denying     him    an    evidentiary   hearing   on   the


                                        -36-
government's    application     for    a     wiretap.    He    claims      that   he

presented the district court with sufficient evidence of duplicity

in the government's affidavit to secure the wiretap so as to
warrant an evidentiary hearing on the issue.

            In order to obtain the requested evidentiary hearing, a

defendant must make a "substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard

for   the   truth,    was   included    by    the   affiant    in   the    warrant

affidavit, and . . . is necessary to the finding of probable

cause." Franks v. Delaware, 438 U.S. 154, 154-56 (1978). Material

omissions in a government's application are also sufficient to

constitute the basis for a Franks evidentiary hearing.                   See United

States v. Parcels of Land, 903 F.2d 36, 46 (1st Cir. 1990).                       "A
district court's determination, however, that the requisite showing

has not been made will be overturned only if clearly erroneous."

Id.

            To support his argument that he was entitled to an

evidentiary hearing, Naranjo-Rosa claims that the government made

a material omission in its affidavit supporting the wiretap.                      He

claims that the government failed to disclose that they knew of a

witness, Angel Ruiz-Adorno, who had a cooperation agreement with

the government and had information on some of the investigation’s

targets.

            Because    we   find   that       Ruiz-Adorno     had   no    relevant

information regarding the charged conspiracy, we conclude that the

government's omission was not sufficiently material to warrant a


                                       -37-
Franks hearing.24        Ruiz-Adorno had some knowledge of one co-

conspirator's activities that occurred between 1992 and 1993. This

knowledge,     however,     was     immaterial     to    the     government's
investigation for several reasons: (1) any information that Ruiz-

Adorno had fell outside the scope of the charged conspiracy, as the

indictment alleged a conspiracy beginning in 1994; (2) the wiretap
application was submitted in April 1997, by which time Ruiz-

Adorno's information was so stale as to be unhelpful; and (3) Ruiz-

Adorno had been in custody for two years prior to the date of the

government's wiretap application, which corroborates the little

value   that   his    information    had    with   regard   to   the   ongoing

investigation.       Because Ruiz-Adorno's knowledge was immaterial to

the investigation, the district court did not err in denying
Naranjo-Rosa's request for a Franks hearing.            See United States v.

Paradis, 802 F.2d 553, 558 (1st Cir. 1986) ("The Franks holding has

been extended to affidavits plagued with material omissions."
(emphasis added)).

                                  CONCLUSION

           With a disturbing frequency, district courts in Puerto
Rico have allowed parties to offer briefs, documents, and testimony

in Spanish without translation.             Though we recognize that most
jurors, and even judges, in Puerto Rico may be more comfortable
speaking in Spanish than in English, district courts must be


24
   In addition, because Ruiz-Adorno did not have any information
that could have helped the government's investigation of this
conspiracy, the defendants cannot rely on him to demonstrate that
the government failed to meet the necessity requirement.

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faithfully committed to the English language requirement.      If not,

the District of Puerto Rico risks disassociating itself from the

rest of the federal judiciary.    More importantly, appellate courts
cannot properly review district court convictions on the basis of

translations, later claimed as evidence, that were neither read nor

heard by the jury.
          For the foregoing reasons, we affirm the convictions of

Rivera-Rosario,   Naranjo-Rosa,    and   Collazo-Arroyo;   reverse   the

convictions of Toro-Santiago and Hernández; and remand the cases of

Rivera-Rosario and Naranjo-Rosa for re-sentencing, and the cases of

Toro-Santiago and Hernández for a new trial.

          Affirmed, reversed, and remanded.




                                  -39-