United States v. Celis

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2009 Decided June 18, 2010

No. 07-3075

UNITED STATES OF AMERICA,
APPELLEE

v.

JOSE ANTONIO CELIS, ALSO KNOWN AS CALVO,
APPELLANT

Consolidated with Nos. 07-3076 and 07-3078

Appeals from the United States District Court
for the District of Columbia
(No. 03cr00554-03)

Carmen D. Hernandez, appointed by the court, argued the
cause and filed the briefs for appellant Anayibe R. Valderama.

Elita C. Amato, appointed by the court, argued the cause
and filed the briefs for appellant Jose A. Celis.

Manuel J. Retureta, appointed by the court, argued the
cause and filed the briefs for appellant Juan D. Giraldo.
 2

Mary E. Mogavero, Trial Attorney, U.S. Department of
Justice, argued the cause for appellee. With her on the brief
were Lanny Breuer, Assistant Attorney General, Teresa A.
Wallbaum, Appellate Counsel, and Tritia Yuen, Trial Attorney.
Roy W. McLeese III, Assistant U.S. Attorney, entered an
appearance.

Before: ROGERS and GRIFFITH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

PER CURIAM: Appellants Jose Antonio Celis, Juan Diego
Giraldo, and Anayibe Rojas Valderama were convicted by a jury
of conspiring to import cocaine and to manufacture and
distribute cocaine for import into the United States, in violation
of 21 U.S.C. §§ 952, 959, 960, and 963. The events underlying
these convictions occurred principally in Colombia, South
America. Because appellants’ actions were tied to a terrorizing
drug trafficking organization in Colombia, the district court
issued a protective order to ensure the safety of certain
government witnesses. Appellants contend that the protective
order and other rulings by the district court require reversal of
their convictions.1 Specifically, appellants contend that the

1
Appellants join each others’ briefs. See FED. R. APP. P.
28(i). Valderama and Celis do so without qualification; Giraldo does
so “except those contrary to his interests on appeal,” Appellant
Giraldo Br. 27. Celis purports to join the arguments in Valderama’s
and Giraldo’s briefs but provides no explanation of how the
incorporated contentions affect him individually. In view of our
disposition we need not decide whether Celis thereby waived these
contentions. Cf. United States v. Avilés-Colon, 536 F.3d 1, 27 n.22
(1st Cir. 2008); see also N.Y. Rehabilitation Care Mgmt. v. NLRB, 506
F.3d 1070, 1076 (D.C. Cir. 2007).
 3

protective order allowing government witnesses to testify under
pseudonyms violated their confrontation and effective counsel
rights under the Sixth Amendment. They further contend that
their ability to prepare for cross-examination was impeded by
the government’s belated production of discovery materials it
was obligated to disclose. Additionally appellants contend they
were denied a fair trial because the district court rejected their
objections to discovery violations by the government, denied
requests for a continuance, and failed to require translation of
discovery materials from Spanish into English and from English
into Spanish. Finally, they contend the district court erred by
denying a motion for severance, admitting audio recordings and
statements in a video recording, finding no prejudicial variance
between the indictment and evidence presented at trial, ruling
there was sufficient evidence to support the verdict, and denying
a motion for a new trial.

We hold that in issuing and managing the protective order
the district court accommodated the government’s law
enforcement interests in a manner that did not impermissibly
intrude upon appellants’ Sixth Amendment rights and did not
result in prejudice that would require reversal of their
convictions. We further hold that appellants’ procedural and
evidentiary challenges are unpersuasive. Accordingly, we
affirm the judgments of conviction.

I.

The Fuerzas Armadas Revolucionaras de Colombia
(“FARC”) is the most significant drug trafficking organization
in Colombia. An area in Colombia known as the Caguan region
is a major source of the FARC’s cocaine production. The 14th
Front, a division of the FARC, controls the region, forcing local
peasants to sell their coca crop exclusively to the organization.
 4

At the time of the events in this case, the 14th Front was
commanded by Fabian Ramirez. Under orders from Ramirez,
Anayibe Rojas Valderama served as the leader and chief
financial officer for the 14th Front’s drug trafficking operations
in the Caguan region. In her position, Valderama was
responsible for ensuring that peasants in the Caguan region sold
cocaine base only to the FARC. She made frequent trips
throughout the region to exchange pesos for cocaine base. After
the cocaine base was acquired, Valderama arranged for it to be
delivered to different processing facilities where it was
converted into cocaine powder. She often traveled to these
laboratories to observe operations. Once the cocaine was in
powder form, buyers would fly in to small airstrips near the
laboratories to take possession of the cocaine with Valderama
overseeing the exchange.

In 2001 Jose Antonio Celis, a drug trafficker who had done
business with the FARC ten years prior, sought to make contact
with the FARC with hopes of another partnership. Celis
contacted Rocio Alvarez, an associate of Valderama’s who
would later become a DEA cooperating informant, and told her
that he wished to obtain cocaine from the FARC. Celis
informed Alvarez that he still had drug contacts throughout the
world. He proposed a scheme in which he would ship FARC
cocaine via boat to Panama and then on to the United States in
containers. Celis asked Alvarez to deliver his proposal to her
FARC contacts.

Alvarez contacted Juan Diego Giraldo, a drug trafficker
with ties to Fabian Ramirez, and communicated the Celis
proposal to him. Giraldo then arranged a meeting between
Alvarez and Fabian Ramirez, at which Alvarez gave Ramirez a
letter outlining Celis’s plan. Giraldo later contacted Alvarez and
asked her to tell Celis that he should travel to San Vicente del
Carguan to meet with Ramirez. While the parties did not reach
 5

an agreement at this initial meeting, Giraldo arranged a second
meeting six or seven months later in which an agreement was
reached. Under the agreement, Celis would transport 1,400
kilograms of cocaine to the United States. The cocaine was to
come from the Caguan region where Valderama led the FARC’s
drug operation. Mr. Celis would not purchase the entire load;
other investors included Fabian Ramirez and Valderama.

The plan proved only partially successful. Celis did receive
cocaine from the FARC and sold some of it in Miami, Florida.
But a portion of the shipment was lost in Panama where, as
Celis later recounted to Alvarez, there were “some problems”
and “even deaths.” Apparently some of the drugs were seized
by law enforcement. When Celis did not promptly repay the
FARC investors due to the loss, Valderama complained to
Alvarez that if he did not pay his debts, he would be killed.
After hearing this news, Alvarez arranged a meeting with
Giraldo and Celis. At the meeting Celis gave Giraldo
newspaper accounts from Panama showing that drugs had been
seized by the law and asked Giraldo to show the articles to
Ramirez and Valderama. Celis later told Alvarez that he was
trying to pay Ramirez and Valderama back through new
shipments of drugs to the United States.

Later in mid-2003, Celis invited Rodrigo Jardinero (a/k/a
“Lechuga”), a Colombian drug trafficker with whom Celis had
a longstanding business relationship, to a meeting in Panama.
Among others, Valderama, Celis, and Giraldo were present at
this meeting. Valderama led the discussion and told Celis that
“he owed us a lot of money.” Though Jardinero was initially
reluctant to work with Valderama, he agreed to assist in
transporting some cocaine to Charleston, South Carolina and
Miami in order to help Celis. Celis eventually sent Jardinero
two different loads of cocaine; Jardinero sent 40 kilos on to
Charleston, but they were not successfully received by his
 6

contacts there. Jardinero did successfully send 41 kilos to
Miami.

Valderama also worked with traffickers other than Celis and
Giraldo to sell FARC cocaine. A drug trafficker named Gordo
Andres brokered a deal with Valderama in which she would
provide FARC cocaine to a trafficker known as “El Burro,” who
would arrange for the cocaine to be sent to a laboratory near
Venezuela and then on to the United States. Pursuant to that
agreement, Andres and El Burro both made trips to meet
Valderama in the Caguan region and purchased a total of 1,600
kilograms worth of cocaine. Valderama counted their money
and authorized the release of the cocaine. Later, after El Burro
and Andres had a falling out, El Burro turned to Alvarez to
broker a deal for him to purchase additional cocaine from the
FARC. Alvarez, with the assistance of Giraldo, put El Burro in
contact with Valderama. This time El Burro sent a pilot to pick
up 420 kilograms of cocaine from Valderama.

In addition to the schemes described above, the appellants
in this case formed a number of other plans to traffic cocaine out
of the Caguan region that never came to fruition. For example,
Valderama and Ramirez hatched a plan in November of 2002 in
which they would provide Gordo Andres with cocaine for him
to sell to enemies of the FARC, only to later steal it back so that
Giraldo could ship it to the United States. Later, in May 2003,
Giraldo and Celis asked Andres to invest in a plan to ship
cocaine to the United States, but that deal fell through when
Andres refused to participate. And while Andres initially agreed
to assist Celis in another deal to purchase 3,000 kilograms of
14th Front cocaine to ship to a drug boss in Mexico, that deal
also fell through when Andres went missing.

Valderama’s role in distributing FARC cocaine ultimately
came to an end on February 10, 2004, when Colombian army
 7

soldiers raided her farm and captured her. Various items were
seized including six kilograms of cocaine, thirteen weapons,
money, military uniforms, a satellite telephone, a video camera,
and several documents one of which included a phone number
and the handwritten name “Flaco,” which was Giraldo’s alias.

Valderama, Ramirez, Celis, and Giraldo were indicted for
conspiracy to manufacture and distribute five kilograms or more
of cocaine, knowing or intending that it be imported into the
United States in violation of 21 U.S.C. §§ 952, 959, 960, and
963. The district court denied Giraldo’s pre-trial motions for
severance and Valderama, Giraldo, and Celis were tried
together.2 At trial, the government introduced testimony from
an expert knowledgeable with the operations of the FARC and
from a number of witnesses who were associates of the
appellants. The government also introduced audio and video
recordings capturing each of the appellants discussing drug
trafficking.

The jury convicted all three appellants. Valderama and
Giraldo were sentenced to 200 months’ incarceration; Celis was
sentenced to 175 months’ incarceration. The appellants have
appealed, each presenting grounds for reversal.

II.

Protective Order; Brady. Valderama and Giraldo contend
the government’s use of pseudonyms for its witnesses and
limitations on disclosure of the witnesses’ true identities
prevented adequate investigation of the witnesses and violated

2
While Ramirez was indicted, he was never apprehended and
remains a fugitive.
 8

appellants’ confrontation rights under the Sixth Amendment.3
Valderama also contends that her right to the effective assistance
of counsel under the Sixth Amendment was violated. Further,
Valderama challenges the timeliness of the government’s
disclosures of information and evidence pursuant to Brady v.
Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405
U.S. 150 (1972), maintaining that the delayed disclosures
impeded counsel’s ability to investigate and prejudiced
counsel’s ability to prepare for cross-examination of protected
government witnesses.

Disclosure of government witness lists and of exculpatory
or impeachment information and evidence implicates the due
process considerations of the Fifth Amendment.4 See United
States v. Ruiz, 536 U.S. 622, 631–32 (2002). Determining
whether to require such disclosure involves considering “the
nature of the private interest at stake . . . the value of the
additional safeguard, and . . . the adverse impact of the
requirement upon the Government’s interests.” Id. at 631.
Because the timing of such disclosure may affect a defendant’s
ability to confront witnesses at trial, these disclosure
requirements also implicate the confrontation considerations of
the Sixth Amendment, as, for example, where the credibility of
a key incognito prosecution witness is in issue. See, e.g., Smith
v. Illinois, 390 U.S. 129, 131–32 (1968). These considerations
can burden both the interests of the government in enforcing the

3
The Sixth Amendment provides, in relevant part: “In all
criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him . . . and to have the
[a]ssistance of [c]ounsel for his defense.” U.S. CONST. amend. VI.
4
The Fifth Amendment provides, in relevant part: “No
person shall . . . be deprived of life, liberty, or property, without due
process of law.” U.S. CONST. amend. V.
 9

law and the ability of a defendant to prepare a defense.
Valderama’s and Giraldo’s Sixth Amendment challenge to the
use of pseudonyms requires this court to determine whether the
district court’s restriction on defense access to the true identities
of protected witnesses until six days before the witness testified
at trial impermissibly impeded appellants’ ability to cross-
examine the protected witnesses in violation of the Sixth
Amendment. We note that in support appellants cited at least
one Fifth Amendment due process case that reflects some
overlap between the concepts of Fifth Amendment due process
and the right of confrontation under the Sixth Amendment.
Thus, a related question this court must address is whether the
government’s manner of disclosure pursuant to Brady and
Giglio as to the protected witnesses, by providing redacted
materials and information to the defense on the first day of trial
and unredacted materials several days before each witness
testified, prejudiced appellants’ ability to prepare for cross-
examination.

A.
The district court issued the protective order under seal on
the first day of jury selection, January 8, 2007. Two months
earlier the government had filed under seal a motion in limine
seeking a protective order barring the release of the true
identities of witnesses from Colombia and allowing these
witnesses to testify under pseudonyms. The motion set out in
vivid detail the reasons underlying the request. The district
court granted the motion for a protective order but not exactly as
the government had requested. Instead of barring the defense
from ever learning the true identifies of the protected witnesses,
the district court issued a protective order including provisions
under which the defense could obtain the true identities of these
witnesses. Referencing concerns about witness safety, the
protective order allowed the witnesses from Colombia to testify
under pseudonyms but required the government to disclose the
 10

witnesses’ true identities to defense counsel. The protective
order also allowed each defense counsel to share the protected
witnesses’ true identifies with the represented defendant and one
member of the defense team located in the United States. The
true identities, however, could not be shared with anyone
located in Colombia without the district court’s prior
permission.

At the motions hearing on January 8, 2007, the district court
reviewed the flexibility of the protective order. For instance,
Valderama’s counsel expressed concern that the protected
witnesses’ identities could never be released to individuals
located in Colombia. The district court responded by
emphasizing that the identities could not be released only
“without leave of court.” The district court explained that
defense counsel would not need to “file formal written motions”
for permission to disclose protected witness identities in
Colombia, but could “come up to the side-bar [in the courtroom]
and talk about it, and we’ll deal with them one at a time if we
need to.” Mot. Hr’g Tr. 23, Jan. 8, 2007. The government, in
turn, proposed providing to defense counsel the true identity of
each protected witness seven days before the witness testified at
trial. Although at this hearing Valderama’s counsel instead
sought the true identities of two witnesses immediately and
Giraldo’s counsel expressed concern that the trial schedule
might not reflect the volume of new information the government
had begun providing to the defense, appellants do not suggest
that at this hearing they raised other objections to these time
constraints.

The government began presenting its case in chief on
January 10, 2007, with FARC expert Lieutenant Colonel
Camilio Santiago of the Colombian military as its first witness,
and the jury heard closing arguments on February 7, 2007. The
government’s witnesses included a number of Colombian
 11

witnesses who testified under pseudonyms.5 One, “Juan
Valdez,” was scheduled to testify on January 30, 2007. On
January 25, the district court granted Valderama’s counsel
permission to speak with a Colombian official in the United
States and by telephone with a prosecutor in Colombia about
“Valdez,” and told Valderama’s counsel “to get back” to the
district court “if [defense counsel] needed more.” Trial Tr.
1420–21, Jan. 29, 2007. On January 29, the district court
granted permission for Valderama’s counsel to investigate
“Valdez” in the United States and in Colombia using his true
identity. “Valdez” began testifying on January 31. On January
29, 2007, the district court also granted Valderama’s counsel
permission to investigate protected witness “Mauricio Moreno”
in Colombia using his true identity; the district court postponed
cross-examination of “Moreno” to “give [Valderama’s counsel]
all the time [she] want[s] to do the investigation.” Trial Tr.
1263, Jan. 29, 2007.

B.
Valderama and Giraldo contend that the government’s use
of pseudonyms for its witnesses prevented proper investigation
of the witnesses and thereby violated their confrontation rights
under the Sixth Amendment. Valderama also contends her right
to the effective assistance of counsel under the Sixth

5
According to Giraldo, five of the protected witnesses were
“so-called ‘insider’ witnesses”: “Alvarez” (the “know it all” witness),
“Moreno” (“the ‘fly on the wall’ witness, claiming to have been
present at numerous meetings and conversations in which he was not
participating”), “Valdez” (“‘the dedicated soldier’ who took advantage
of a government-sponsored leniency program to prevent
incarceration”), “Lopez” (“the ‘politically active’ witness, whose work
on behalf of the poor and down-trodden afforded him an opportunity
to be in the right place, at the right time”), and “Jardinero” (“the
‘reluctant’ witness, whose disdain for Mr. Giraldo and Ms. Valderama
was palpable”). Appellant Giraldo Br. 4–5.
 12

Amendment was violated.

Although the true identities of protected witnesses who
testified under pseudonyms eventually were made known to the
defense, the protective order’s limitation on defense access to
and ultimate use of information regarding these witnesses
presents concerns similar to those where witnesses are prevented
from disclosing information on cross-examination or when
confidential informants do not testify in court. The Supreme
Court has addressed such disclosure issues on a case-by-case
basis. In Alford v. United States, 282 U.S. 687 (1931), and
Smith v. Illinois, 390 U.S. 129, the Court held, much as
Valderama and Giraldo contend, that the witnesses in those
cases should have been required to disclose their addresses, and
in Smith to disclose his true name, in order to give the defense
“the opportunity to place the witness in his proper setting” and
to test the witnesses’ credibility at trial. Smith, 390 U.S. at 132
(quoting Alford, 282 U.S. at 692); see also Smith at 133–34
(White, J., concurring). Similarly, in Roviaro v. United States,
353 U.S. 53 (1957), relied on by Valderama, the Supreme Court
held as a matter of “the fundamental requirements of fairness”
that the prosecution could not refuse to disclose the identity of
an undercover informant who was “the sole participant, other
than the accused, in the transaction charged,” because the
informant’s identity was “relevant and helpful to the defense of
an accused,” id. at 60–61, 64. The Court cautioned, however,
that “no fixed rule with respect to disclosure is justifiable.” Id.
at 62. Instead “[t]he problem is one that calls for balancing the
public interest in protecting the flow of information against the
individual’s right to prepare his defense,” and “[w]hether a
proper balance renders nondisclosure erroneous must depend on
the particular circumstances of each case, taking into
consideration the crime charged, the possible defenses, the
possible significance of the informer’s testimony, and other
relevant factors.” Id.
 13

The Supreme Court held, in addressing a Brady claim, that
“[t]here is no general constitutional right to discovery in a
criminal case,” and “[i]t does not follow from the prohibition
against concealing evidence favorable to the accused that the
prosecution must reveal before trial the names of all witnesses
who will testify unfavorably.” Weatherford v. Bursey, 429 U.S.
545, 559 (1977). Prior to Weatherford, this court also had held
in United States v. Bolden, 514 F.2d 1301, 1312 (D.C. Cir.
1975), that under Brady the prosecution has no duty to disclose
its witness list prior to trial in a noncapital case, citing the
provision in 18 U.S.C. § 3432 that a person charged with a
capital offense “shall . . . be furnished with . . . a list . . . of the
witnesses to be produced on the trial for proving the
indictment,” and noting the defeat in 1975 of a proposal to
amend Federal Rule of Criminal Procedure 166 to require
disclosure of witness lists.

This court held in United States v. White, 116 F.3d 903, 918
(D.C. Cir. 1997), citing Weatherford and Criminal Rule 16, that
“[t]he constitutional right to cross examine has never been held
to encompass a right to pretrial disclosure of prosecution
witnesses.” See also United States v. Nevels, 490 F.3d 800, 803
(10th Cir. 2007); United States v. Edwards, 47 F.3d 841, 843
(7th Cir. 1995); United States v. Alessi, 638 F.2d 466, 481 (2d
Cir. 1980); 2 Charles Alan Wright & Peter J. Henning, Federal
Practice & Procedure: Criminal § 258 (4th ed. 2008); cf. United
States v. Edmonson, 659 F.2d 549, 551 (5th Cir. 1981). “[T]he
right to confrontation is a trial right, designed to prevent
improper restrictions on the types of questions that defense
counsel may ask during cross-examination,” Pennsylvania v.

6
Criminal Rule 16 provides for disclosure by the prosecution
or defense of statements, documents, reports, objects, and other items
or information in particular circumstances, as well as for regulation of
discovery by the district court. Names of witnesses are not listed as
subject to disclosure. See FED. R. CRIM. P. 16.
 14

Ritchie, 480 U.S. 39, 52 (1987) (plurality opinion), and “does
not create a right to pretrial discovery,” United States v. Mejia,
448 F.3d 436, 458 (D.C. Cir. 2006). See United States v.
Wilson, — F.3d —, 2010 WL 2036304, at *8 (D.C. Cir. May 25,
2010); United States v. Tarantino, 846 F.2d 1384, 1415–16
(D.C. Cir. 1988).

Further, in White the court held that precluding pretrial
discovery of the prosecution’s witness list does not
automatically infringe a defendant’s right to present a defense,
especially where “security concerns for the witnesses plainly
militated against it.” 116 F.3d at 918. The court reasoned that
the district court’s denial of a defendant’s motion to discover the
prosecution’s witness list was within its discretion because the
defendant had “offered no special reason in favor of disclosure”
and because “potential witnesses had been threatened, assaulted,
even murdered.” Id. at 913, 918. Other circuits are in accord.
See Clark v. Ricketts, 958 F.2d 851, 855 (9th Cir. 1991); United
States v. Watson, 599 F.2d 1149, 1157 (2d Cir. 1979), amended
on reh’g on other grounds, 690 F.2d 15 (2d Cir. 1979), modified
on reh’g on other grounds sub nom. United States v. Muse, 633
F.2d 1041, 1042 n.1 (2d Cir. 1980); Caldwell v. Minnesota, 536
F.2d 272, 273–74 (8th Cir. 1976); United States v. Alston, 460
F.2d 48, 51–52 (5th Cir.1972); United States v. Palermo, 410
F.2d 468, 472 (7th Cir. 1969). The Supreme Court observed, in
rejecting the view that Fifth Amendment due process required
the prosecution to disclose material impeachment evidence prior
to entry of a plea, that the “careful tailoring that characterizes
most legal Government witness disclosure requirements” helps
prevent “disrupt[ing] ongoing investigations” and “expos[ing]
prospective witnesses to serious harm.” Ruiz, 536 U.S. at
631–32. Indeed, concern about witness security contributed to
the 1975 defeat of a proposed revision of Criminal Rule 16 that
would have required pretrial disclosure of prosecution witnesses,
because such disclosure was considered “not in the interest of
the effective administration of criminal justice” due to
 15

“[d]iscouragement of witnesses and improper contacts directed
at influencing their testimony.” H.R. Rep. No. 94-414, at 12
(1975) (Conf. Rep.), reprinted in 1975 U.S.C.C.A.N. 713, 716.7
Contrary to appellants’ implicit assumptions, then, pretrial
disclosure of the prosecution’s case is not always without
limitation.

On the record before the district court there can be little
question that a protective order for certain Colombian
government witnesses was appropriate in light of the
government’s submissions in its sealed in limine motion for a
protective order. Valderama and Giraldo object that the
protective order was unnecessary because the government never
demonstrated that any of the appellants had personally
threatened any government witness. However, the
government’s sealed motion recounted how the FARC, with
which appellants were associated in varying degrees, had
[REDACTED]
issued bulletins threatening death to anyone who “betrayed
. . . Valderama,” and directly threatened to kill at least two
cooperating witnesses; the in limine motion indicated the FARC
had routinely used violence against its enemies. The
appropriateness of using pseudonyms to protect witnesses does
not depend on whether the threat to the witness comes directly
from a defendant or from another source. Valderama’s
reference to Giles v. California, — U.S. —, 128 S. Ct. 2678

7
In a similar vein, the United States Attorneys’ Manual states
that although disclosing information prior to trial might make the trial
more efficient, “pretrial disclosure of a witness’ identity or statement
should not be made if there is, in the judgment of the prosecutor, any
reason to believe that such disclosure would endanger the safety of the
witness or any other person, or lead to efforts to obstruct justice,” and
suggests “applying for a protective order if discovery . . . may create
a risk of harm to the . . . witness.” U.S. Attorneys’ Manual § 9-6.200
(Nov. 2000).
 16

(2008) is inapposite, because here the protected witnesses
testified at trial while Giles addressed possible forfeiture of a
defendant’s Sixth Amendment right to confront a witness when
the defendant wrongfully made the witness unavailable to
testify. See Giles, — U.S. at —, 128 S. Ct. at 2678, 2687–88.
In addition, Valderama’s reliance on Roviaro, 353 U.S. 53, for
the proposition that the government may not prosecute a case
while protecting the identity of a witness is misplaced. Unlike
here, where the government disclosed the true identities of
protected witnesses to defense counsel and those witnesses
testified at trial under pseudonyms, Roviaro involved a non-
testifying confidential informant.

The protective order and its management by the district
court reflect an appropriate balancing of interests in the relevant
case-specific context in view of the factors described in Alford
and Smith as well as Roviaro, 353 U.S. at 61–62. On the one
hand, Valderama, Giraldo, and Celis were indicted for engaging
in a drug conspiracy with ties to the FARC, and the government
presented evidence that in Colombia the FARC had killed
people suspected of helping to arrest Valderama [REDACTED]

and had
threatened to kill cooperating witnesses. On the other hand,
there were special circumstances affecting the ability of
appellants to prepare for cross-examination. The prosecution
rested on witnesses and events located in a foreign country in
which another language was spoken. Because the government
planned to have some of the threatened government witnesses
testify under pseudonyms about their own involvement with
appellants and the FARC in drug trafficking, the defense would
attempt to attack the credibility of these witnesses at trial. To
enable such confrontation, the district court balanced the reality
of potentially life-threatening dangers to the protected witnesses
and their families, and the defense need to prepare to cross-
examine the protected witnesses by allowing defense access to
 17

the true identities of the protected witnesses days before their
testimony and, when shown to be necessary for those purposes,
allowed investigation using these true identities in the United
States and in Colombia. Upon defense requests, the district
court permitted investigations using protected witnesses’ true
identities, albeit not pretrial as defense counsel would have
preferred and not always for as long a period of time as defense
counsel desired. For example, the district court granted the
requests of Valderama’s counsel to investigate two protected
witnesses using their true identities.

On appeal appellants’ objections to the use of pseudonyms
reflect frustration and disagreement with the district court’s
refusal to grant additional time for investigation and review of
disclosed materials rather than identifying instances of actual
prejudice to their Sixth Amendment confrontation rights. To the
extent more investigation was needed and discovery burdened
defense counsel, determining whether to grant a continuance is
a question that lies within the sound discretion of the district.
See infra Part III. Although defense counsels’ frustrations with
proceeding under a protective order calling for a “may I”
procedure are understandable, the question the court is
addressing here is limited to whether appellants’ confrontation
rights were violated, and appellants fail to demonstrate that the
district court’s protective order procedure allowing the use of
pseudonyms did so.

Valderama’s contention that the protective order so limited
investigation of the protected witnesses that she was denied her
Sixth Amendment right to the effective assistance of counsel is
unpersuasive. There is a “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance” under Strickland v. Washington, 466 U.S. 668, 689
(1984). Valderama’s counsel pursued vigorous cross-
examination of the protected witnesses and the one instance she
cites for prejudice, regarding a belatedly noticed date in the
 18

header of a fax transmission regarding “Valdez,” reveals upon
examination no prejudice at all. See infra Part III. Valderama’s
reliance on United States v. DeCoster, 487 F.2d 1197, 1204
(D.C. Cir. 1973), for the proposition that trial counsel is
constitutionally ineffective if counsel does not investigate
witnesses, fails to acknowledge that DeCoster predated
Strickland and that the circumstances of the two cases are not
comparable; DeCoster involved counsel’s dereliction not, as
here, limitations on investigation imposed by a court. Neither
is Valderama’s reference to Geders v. United States, 425 U.S.
80, 91 (1976), persuasive; Geders involved a court’s restriction
on communications between a defendant and defense counsel
rather than a restriction on international investigation of
endangered witnesses. Even by analogy to Valderama’s cases,
the record shows the district court accommodated Valderama’s
requests for additional time to investigate “Valdez” and
“Moreno.” Although purporting to deny Valderama’s request for
a continuance on January 25, 2007 to investigate “Moreno,” the
district court postponed cross-examination of “Moreno” to allow
such investigation and on January 29 permitted investigation in
Colombia using the true identity of “Moreno.” Again, although
denying Valderama a continuance on January 29 to investigate
“Valdez,” the district court allowed Valderama’s counsel to
investigate “Valdez” in the United States and in Colombia using
his true identity and adjourned the trial early the day before
Valderama’s February 1 cross-examination of “Valdez.”

Doubtless out-of-the-country events and the protected status
of witnesses allowed to testify under pseudonyms create
inconveniences for the parties in a criminal case that a district
court must accommodate. But in addressing the law
enforcement interests of the government, the district court
protected appellants’ constitutional rights by affording a means
for the defense to obtain time for investigations and for
processing disclosed information. The protective order and the
district court’s management of it involved a delicate balancing
 19

of interests necessitated by extraordinary circumstances
warranting special measures to protect key witnesses. On
appeal, the burden was on appellants to show prejudice, which
they have not done. “Under all the circumstances, given the
seriousness of the threat and the extensiveness of the
cross-examination,” Watson, 599 F.2d at 1157; see infra Part III,
we hold the district court did not impermissibly intrude upon
appellants’ Sixth Amendment rights.

C.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme
Court held that “suppression by the prosecution of evidence
favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”
Id. at 87. The Supreme Court recognized the obligation to
disclose even in the absence of a defense request. United States
v. Agurs, 427 U.S. 97, 107 (1976). Further, in Giglio v. United
States, 405 U.S. 150, 154 (1972), the Supreme Court extended
the prosecution’s Brady obligation to include the disclosure of
evidence affecting the credibility of a witness. Such information
and evidence is “material” under Brady “if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.” Kyles
v. Whitley, 514 U.S. 419, 433 (1995) (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985) (opinion of Blackmun, J.)).
The Supreme Court continues to reaffirm that prosecutors have
an “affirmative duty to disclose evidence favorable to a
defendant,” Kyles, 514 U.S. at 432, and that “the prudent
prosecutor will resolve doubtful questions in favor of
disclosure,” Agurs, 427 U.S. at 108; see Kyles, 514 U.S. at 439.

The timing of the government’s disclosures of Brady and
Giglio evidence and information to the defense is important. In
United States v. Pollack, 534 F.2d 964 (D.C. Cir. 1976), this
court instructed that “[d]isclosure by the government must be
 20

made at such a time as to allow the defense to use the favorable
material effectively in the preparation and presentation of its
case, even if satisfaction of this criterion requires pre-trial
disclosure.” Id. at 973. Similarly, in Bagley, 473 U.S. at 678,
the Supreme Court had observed that “[t]he constitutional error,
if any, in this case was the Government’s failure to assist the
defense by disclosing information that might have been helpful
in conducting the cross-examination.” Cf. Leka v. Portuondo,
257 F.3d 89, 103 (2d Cir. 2001). Where the prosecution tardily
discloses material pursuant to Brady or Giglio, however,
appellants “must establish that had the information or evidence
been disclosed earlier, there is a probability sufficient to
undermine our confidence in the actual outcome that the jury
would have acquitted.” Tarantino, 846 F.2d at 1417. The
prosecution also must disclose under the Jencks Act, 18 U.S.C.
§ 3500, statements of a prosecution witness after the witness has
testified on direct examination, see United States v. Oruche, 484
F.3d 590, 597 (D.C. Cir. 2007); FED. R. CRIM. P. 26.2, in a
manner allowing the defense “a reasonable opportunity to
examine it and prepare for its use in the trial,” United States v.
Holmes, 722 F.2d 37, 40 (4th Cir. 1983); cf. United States v.
Stanfield, 360 F.3d 1346, 1357 (D.C. Cir. 2004).

The district court stated at the motions hearing on
December 8, 2006, in response to defense requests for Brady,
Giglio, and Jencks material, that “[t]he government says it’s
well aware of its obligations and is going to do what it needs to
do, and if it hasn’t already done it, I’m confident they will do it.”
Mot. Hr’g Tr. 8, Dec. 8, 2006. The record indicates, however,
that witness security concerns influenced the government’s
decisions on disclosure. At the motions hearing on January 8,
2007, the government recommended “restrictive conditions for
the disclosure of any information [it] turn[s] over to the defense
because of the high security concerns for [its] witnesses.” Mot.
Hr’g Tr. 22, Jan. 8, 2007. The government also cautioned that
the Jencks material “gives a lot of information that could lead to
 21

security concerns.” Id. at 24. When defense counsel inquired,
in light of the district court’s protective order, when Giglio and
Jencks material would be provided, the government stated it
would turn over Giglio evidence to defense counsel at the start
of trial but with the identities of the witnesses who would testify
under pseudonyms redacted. The true identities of the protected
witnesses would, the government proposed, be disclosed seven
days before each witness testified. Jencks statements would be
turned over at least two days before each witness testified. In
responding to a defense request for the true identities of two
particular protected witnesses, the government proposed
disclosing the identities only after the jury was sworn, but the
district court directed the disclosure occur before the jury was
sworn.

As it turned out, the government sometimes made
disclosures earlier or later than it had proposed. On occasion the
government did not receive material from Colombia until the
trial had started, as, for example, with the written and video
statements by protected witness “Moreno.” Even so, the
government disclosed Jencks material for “Moreno” on January
22, more than two days before he testified on January 25, and
nine days before his cross-examination on January 31. On
January 25, the government disclosed Jencks material for
protected witness “Valdez” and other witnesses expected to
testify the next week. However, the government did not disclose
some Giglio evidence for “Valdez” until January 29 and he was
scheduled to testify the following day, although he did not
actually testify until January 31. In the district court Valderama
challenged the government’s disclosures as untimely, and this
court’s review of the materiality of potential violations of Brady
and Giglio is de novo. See Oruche, 484 F.3d at 596; United
States v. Cuffie, 80 F.3d 514, 517 (1996).

Valderama contends the disclosed Brady and Giglio
materials were turned over too late for the defense to make
 22

effective use of them. Although counsel for the United States
asserted during oral argument that the prosecution has no
obligation to disclose impeachment evidence prior to the first
day of trial, even if it has been redacted in accord with a
protective order, counsel acknowledged that the critical point is
that disclosure must occur in sufficient time for defense counsel
to be able to make effective use of the disclosed evidence. Cf.
Bagley, 473 U.S. at 678; Pollack, 534 F.2d at 973.

One of Valderama’s (and Giraldo’s) objections is that so
much information was being disclosed by the government that
effective use was prejudiced once the redacted names were
disclosed to the defense. The record indicates that the volume
of material turned over by the government presented practical
difficulties for the defense. At trial the government noted it had
provided between six thousand and seven thousand pages of
material to the defense during the months before trial, including
five thousand wiretap calls, and had turned over eighteen
“discovery packages” in the eighteen months before trial. The
government did not provide redacted Giglio material until the
first day of trial, and later provided the true identities that
defense counsel could “then match to the Giglio.” Mot. Hr’g Tr.
24, Jan. 8, 2007. Thus defense counsel needed to process this
Giglio material in light of the pretrial discovery materials, as
well as the Jencks material later disclosed by the government,
during trial.

Counsel for Valderama suggested to the district court that
the use of redactions should have allowed the government to
disclose the redacted material earlier, and counsel for Valderama
and Giraldo informed the district court that they were having
difficulty during trial processing the disclosed material quickly
enough for use. During trial, the district court observed that it
was “the government’s case to overtry,” such as by “bring[ing]
on evidence on too short notice as to which [defense counsel]
make either now or later . . . some showing of prejudice.” Trial
 23

Tr. 1421–22, Jan. 29, 2007. Under the circumstances,
Valderama’s objection that required disclosures under Brady
and Giglio were not timely is not without some persuasive force.
See Pollack, 534 F.2d at 973–74. But the question now is
whether this untimeliness was “sufficient to undermine our
confidence in the actual outcome” of the trial. Tarantino, 846
F.2d at 1417.

Valderama maintains that the government should have
disclosed earlier both the statements of “Valdez” to Colombian
authorities that did not implicate Valderama in certain drug
trafficking and a report and interviews related to “Valdez” that
did not implicate Valderama in particular violent crimes.
Perhaps so. However, Valderama’s counsel’s discussion of the
report and interviews and her February 1 cross-examination of
“Valdez” demonstrate that she was able to make effective use of
the materials nonetheless. For example, Valderama’s counsel
told the district court that the report and interviews did not
implicate Valderama in any murders, and Valderama’s counsel
cross-examined “Valdez” regarding inconsistencies raised by
these materials about the length of time he was a member of the
FARC and his work for Valderama. Valderama’s reliance on
Pollack, 534 F.2d at 973; United States v. Enright, 579 F.2d 980,
989 (6th Cir. 1978); United States v. Beasley, 576 F.2d 626, 630
(5th Cir. 1978); Leka, 257 F.3d at 103; and United States v.
Cobb, 271 F. Supp. 159, 163 (S.D.N.Y. 1967), are unhelpful to
her. In Pollack and Enright, the courts held that the actual or
probable Brady violations had not sufficiently disadvantaged the
defendants to change the results of the trial; Beasley and Leka
involved failed or suppressed rather than untimely disclosure; in
Cobb the court discussed why timely disclosure is important.

Even assuming Valderama’s counsel might have made more
effective use of tardily disclosed information and evidence had
the government timely fulfilled its disclosure obligations in all
respects, the government’s evidence against appellants was
 24

overwhelming. For example, not only were there video and
wiretap recordings, there was extensive testimony by “Rocio
Alvarez” and other government witnesses about Valderama’s
central role in managing and carrying out the conspiracy to
manufacture and export cocaine from Colombia into the United
States. Appellants therefore fail to show the untimely
disclosures were “material.” See Kyles, 514 U.S. at 433–34.

III.

Valderama raises four objections relating to her ability to
challenge the government’s case at trial. First, Valderama
contends that the trial court prevented her from cross-examining
several of the government’s witnesses in violation of her Sixth
Amendment right to confrontation. Second, she argues that the
district court abused its discretion by denying her motions for a
continuance so that she could review materials turned over by
the government pursuant to the Jencks Act. Third, she argues
that she was denied the right to participate in her own defense
because she did not receive written translations in Spanish of all
documents turned over in discovery. Finally, she argues she was
denied a fair trial because the government denied her access to
government witnesses. We do not think any of the grounds
relied upon merit reversal.

A.
Beginning with the Confrontation Clause argument,
Valderama’s primary contention is that the district court violated
her rights by placing limits on her cross-examination of Juan
Valdez. Valdez testified that, as part of his role as a security
guard for the FARC, he accompanied Valderama on several trips
throughout the Caguan region where Valderama delivered
money and picked up large shipments of cocaine base.

During cross-examination, counsel for Valderama
attempted to impeach Valdez with a statement he gave to
 25

Colombian authorities. Initially, however, Valdez denied that
the signature on the statement was his. On appeal, Valderama
claims the district court prevented her from impeaching Valdez
by demonstrating that the signature was in fact his. Discussion
at a side-bar conference indicated, however, that Valdez denied
that it was his signature because he was concerned about not
disclosing his real name. In any event, the district judge
instructed the jury that, despite Valdez’s initial confusion, the
signature and statement did belong to him. Given this
instruction from the judge, the jury would not have received a
“significantly different impression” of Valdez’s credibility had
Valderama’s counsel been allowed to press Valdez about his
initial denial and thus no confrontation clause violation can be
shown. United States v. Davis, 127 F.3d 68, 70-71 (D.C. Cir.
1997).

In addition to the signature issue, Valderama argues that the
trial court violated her Sixth Amendment rights by prohibiting
her from impeaching Valdez with the substance of the written
statement. Specifically, Valderama argues that the trial court
prevented her (a) from asking Valdez why the statement
mentioned Valderama but did not refer to the frequent drug-
running trips with her he testified to on direct examination and
(b) from probing inconsistencies between his trial testimony and
the written statement regarding his length of service in the 14th
Front. But Valderama did have the opportunity to effectively
question Valdez on both of these points. The trial court
explicitly permitted Valderama’s counsel to ask Valdez if the
statement referred to his drug-running trips with Valderama.
Counsel did so and Valdez conceded it did not. And while
Valderama argues she was prevented from asking Valdez why
he omitted such a significant fact in his statement, Valdez did
provide an explanation, stating that the Colombian authorities to
whom he gave the statement did not ask him about that subject.
 26

As for the length of Valdez’s service, in both cross-
examination and re-cross Valderama’s counsel pressed Valdez
on the discrepancy between the written statement that said he
had been with the 14th Front for five years and his trial
testimony that he had spent approximately nine years with the
group. Ultimately, Valdez responded that the five years listed
in the written statement was incorrect. While the trial court did
eventually limit defense counsel’s questions on this issue,
Valderama’s counsel was able to effectively point out the
discrepancy. That is all the Sixth Amendment requires. See
Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“[T]he
Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might
wish.”).

Valderama raises one additional complaint with respect to
her cross-examination of Valdez. She claims that the trial court
prevented her from asking Valdez about a fax header on the
written statement that indicated Valdez gave the statement in
2003. She asserts the date is material because the statement was
purportedly given when Valdez turned himself in to Colombian
authorities and thus contradicts Valdez’s testimony that he
remained with the FARC through 2005. Although the trial court
did say that it would not allow questions regarding the date
listed in the text of the statement because it believed it was the
result of a typographical error, apparently neither the parties nor
the court noticed the fax header at all. Indeed, even Valderama
admits that the date on the fax header was “faint” and that even
her counsel did not discover it until after trial. Appellant
Valderama Br. 25. Because Valderama’s counsel did not even
notice the date in the fax header, much less attempt to use it to
impeach Valdez at trial, we cannot say that the court somehow
deprived Valderama of her right to confront Valdez on this
issue.
 27

Valderama also raises Confrontation Clause challenges
concerning her questioning of other witnesses, but these
challenges also lack merit. For instance, she claims that the
court did not allow her to cross-examine Mauricio Moreno with
records showing a prior conviction, but the government and
Valderama’s counsel agreed at trial that the records in question
were, at best, inconclusive as to whether they referred to
Moreno. In addition, she claims that she was prevented from
impeaching Moreno with video testimony he gave in a prior
Colombian proceeding. It is simply not the case, however, that
the court prevented Valderama from pursuing this line of
questioning. Valderama acknowledges she did not pursue it
because she did not have an English transcript of that prior
testimony, yet her counsel received the video six days before
cross-examination began and neither had a transcript produced
nor asked the court to produce one. And while Valderama
claims she was forced to cut short her cross-examination of
Rocio Alvarez when her counsel learned that Alvarez was not
the confidential source listed in a report produced by the DEA,
we simply do not understand how this confusion on the part of
her attorney could have violated Valderama’s Confrontation
Clause rights.8

Finally, Valderama claims her counsel could not effectively
cross-examine Rodrigo Jardinero because the government
misled her into believing that Jardinero had never met her client,
leaving counsel unprepared when Jardinero testified that he
discussed drug dealing with Valderama at a meeting in a
Panama restaurant. We have no need to probe the government’s
motives nor whether Valderama’s counsel was genuinely
surprised at the testimony, for it is clear that counsel more than
overcame any initial shock—she cross-examined Jardinero at

8
Valderama also claims that she was prevented from
confronting hearsay statements by Moreno, but the only citations in
her brief on this issue are to defense objections that were sustained.
 28

length about the meeting at issue and his general credibility.
This was undoubtedly effective cross-examination under the
Sixth Amendment.

B.
Turning to Valderama’s next argument, she asserts that her
conviction should be overturned because the district court
improperly denied several motions for continuances. Valderama
sought continuances to review material produced by the
government pursuant to the Jencks Act, 18 U.S.C. § 3500. We
review the denial of a motion for a continuance to review Jencks
material for an abuse of discretion. United States v. Stanfield,
360 F.3d 1346, 1358 (D.C. Cir. 2004). In order to obtain
reversal, an appellant must show that actual prejudice resulted
from denial of the continuance. United States v. Kelley, 36 F.3d
1118, 1126 (D.C. Cir. 1994). We find no grounds for reversal.

Valderama makes much of the district court’s statement at
the outset of trial that there would be “100 percent no
continuances.” This unflinching desire for expeditiousness, she
contends, resulted in an abuse of discretion when the court
refused to adjourn proceedings to allow appellants to review
Jencks material and prepare for its use.9 But while the district
court did wish to avoid continuances, it did in fact make
adjustments in the trial schedule to give the appellants time to
review Jencks material. For example, when the appellants

9
The Jencks Act obligates the government to turn over
“statements” of government witnesses. 18 U.S.C. § 3500(b). Unlike
the government’s Brady obligations, the government is not required
to turn over Jencks material until after the witness has testified at trial.
Id. Yet while the government may wait until after its witness has
testified to turn over material, the act gives the district court discretion
“to recess proceedings in the trial for such time as it may determine to
be reasonably required for the examination of such statement by said
defendant and his preparation for its use in the trial.” Id. § 3500(c).
 29

sought a continuance to review Jencks statements by Mauricio
Moreno, the district court denied the continuance motion but
postponed Moreno’s cross-examination and moved on to other
witnesses, giving defense counsel six additional days to review
the Jencks material for Moreno. We found no abuse of
discretion in a case in which the district court gave defense
counsel nine minutes to review “a very thick stack of papers,”
Stanfield, 360 F.3d at 1358, so we surely could not criticize the
district court for providing six days.

We view similarly the district court’s denial of a
continuance to review Jencks material concerning Juan Valdez.
The Jencks material concerning Valdez was provided on January
25, but counsel did not request a continuance until January 29,
and cross-examination did not begin until February 1. Counsel
thus had seven days to review the material before cross-
examination.

To be sure, Valderama points out that, at least with respect
to Valdez, she sought a continuance not only to review the
Jencks material but also to use the material as a basis to perform
an investigation of Valdez; she asserts she simply did not have
enough time to conduct an adequate investigation into an
individual who resides in a foreign country. Valderama did,
however, have the opportunity to communicate with a
Colombian law enforcement official and a Colombian
prosecutor familiar with Valdez. And while she may have
wished to conduct a fuller investigation, she does not identify
any other people she would have interviewed with additional
time, much less what information she believes she may have
uncovered and how any such information could have affected
the result at trial in any way. Moreover, as discussed supra,
Valderama’s counsel vigorously cross-examined Valdez using
the statement he gave to Colombian authorities to challenge his
credibility. As a result of all of this, Valderama cannot
 30

demonstrate actual prejudice and is thus not entitled to
reversal.10

C.
Next, Valderama argues her conviction should be
overturned because the court did not require that all discovery
documents containing English be translated into Spanish. This
was required, Valderama asserts, because she has a right to
assist in preparing her own defense and her inability to
comprehend English prevented her from doing so. It is simply
not the case, however, that a language barrier completely
prevented Valderama from assisting in her own defense. After
all, she had the benefit of interpreters for all courtroom
proceedings and her defense counsel was bilingual, and thus
could have effectively discussed any relevant discovery
materials with Valderama. In light of these facts, Valderama’s
constitutional claim is actually quite audacious: she asks us to
hold that the Constitution compels that in every case in which
defendant is not fluent in English, all discovery documents must
be translated, in written form, into the defendant’s native tongue,
even if defendant’s counsel is bilingual.

10
In addition to her motions for continuances to review Jencks
Act material, Valderama also claims the district court should have
granted a continuance during the testimony of Rodrigo Jardinero for
entirely different reasons. As discussed supra, she claims the
government misled her counsel into believing that Jardinero and
Valderama had never met. She submits that counsel’s surprise when
Jardinero testified to knowing Valderama left her unprepared, so the
court should have ordered a continuance. Once again, Valderama
cannot demonstrate prejudice. As discussed supra, Valderama’s
counsel overcame any surprise and cross-examined Jardinero at length
about the meeting at issue and his general credibility. We can find no
prejudice in light of such exemplary cross-examination. See Kelley,
36 F.3d at 1126 (defendant not prejudiced by denial of motion for
continuance when counsel presented “high quality” defense).
 31

There is simply no support for such a claim. In United
States v. Mosquera, 816 F. Supp. 168, 175 (E.D.N.Y. 1993), the
strongest case for Valderama’s position, a district court ordered
the government to turn over a copy of the indictment translated
into Spanish and additionally ordered that “[a]ll documents,
except motion papers and original evidence” be translated, id. at
171.11 In doing so, however, the court explained that the scope
of translation in a given case is committed to the district court’s
discretion, id. at 174, and noted special factors that led it to
require written translations in that case – the case included
eighteen defendants that did not understand English, each
defendant was represented by separate counsel, and the
defendants were unable to understand even the charges and
evidence against them. Id. at 170, 176. Furthermore, a number
of other courts have recognized that “Mosquera does not stand
for the proposition that criminal defendants enjoy a
constitutional right to written translations of [all] court
documents.” United States v. Gonzales, 339 F.3d 725, 729 (8th
Cir. 2003); see also Canizales-Satizabal v. United States, 1995
WL 759472 *1 n.2 (7th Cir. 1995) (“This court . . . has never
held that a defendant has a constitutional right to have
documents translated into his own language.”); Sanders v.
United States, 130 F. Supp. 2d 447, 449 (S.D.N.Y. 2001) (“The
Constitution does not require that [information in court
documents] be communicated in writing in a foreign
language.”). We agree. “A court may decide to provide written
translations in difficult and complicated cases,” Gonzales, 339
F.3d at 729 (emphasis supplied), but that decision, like the
management of discovery in general, is committed to the district
court’s discretion. See Islamic Am. Relief Agency v. Gonzales,
477 F.3d 728, 737 (D.C. Cir. 2007). And in this case, in which

11
It is not obvious to us that discovery documents such as
those at issue here would have come within the ambit of the relatively
expansive order in Mosquera. Presumably, many of the documents
produced in discovery would qualify as “original evidence.”
 32

Valderama was assisted by bilingual counsel and where there is
no reason to believe Valderama was unable to understand the
charges and evidence against her, we find no abuse of discretion.

D.
Finally, we reject Valderama’s claim that she is entitled to
reversal because the government impeded her access to
witnesses. At one point in the trial, Valderama’s counsel
claimed that she had requested to interview government
witnesses before they testified but she had not received a
response. Lawyers for the government responded by saying that
the witnesses had responded, but they did not wish to be
interviewed by the defense. Valderama raised no further
objections. Without more, we have no basis to find that the
government acted in bad faith to keep witnesses from talking
with lawyers for the defense.

IV.

Appellants also raise challenges to the admission into
evidence of certain recorded conversations. None is persuasive.

A.
Giraldo contends the district court erred by admitting
wiretapped recordings of his telephone conversations. He
maintains the tapes were inadequately authenticated and that the
government did not prove a proper chain of custody. We review
the district court’s rulings on these points for abuse of
discretion. See United States v. Lawson, 494 F.3d 1046, 1052
(D.C. Cir. 2007).

To authenticate audio recordings, the government must
prove that, “as a matter of reasonable probability, possibilities
of misidentification and adulteration have been eliminated.”
White, 116 F.3d at 920–21 (internal quotation marks omitted);
see also FED. R. EVID. 901(a) (“The requirement of
 33

authentication . . . is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent
claims.”). At trial, the government introduced evidence that the
equipment used to record Giraldo’s phone calls was in proper
working order and that only authorized personnel had access to
the recordings. Four witnesses identified Giraldo and the other
individuals recorded. Camila Vargas, one of the officials
responsible for copying the tapes, stated that the duplication
process resulted in an “exact” copy of the original recording.
Trial Tr. at 217, Jan. 16, 2007. Giraldo argues this evidence was
insufficient because neither Vargas nor Pablo Diaz, another
official involved in duplicating the tapes, had listened to all of
the tapes to ensure a perfect duplication. But that is not the
standard for authentication. Despite the fact that no one listened
to each tape from beginning to end, the district court heard
evidence relating to the integrity of the duplication procedures
and the quality of the machinery. Based upon this showing, we
conclude that the court did not abuse its discretion by
determining that the recordings were authentic “as a matter of
reasonable probability.” White, 116 F.3d at 920–21.

Giraldo also argues that the government failed to establish
an adequate chain of custody because it provided no evidence of
who transferred the original recordings from their maker,
Alfonso Sanabria, to Vargas. But the government need not
show the identity of each person who had custody of the tapes.
See Robinson v. United States, 283 F.2d 508, 509 (D.C. Cir.
1960). Instead, the government must only “demonstrate that, as
a matter of reasonable probability, possibilities of
misidentification and adulteration have been eliminated.”
United States v. Stewart, 104 F.3d 1377, 1383 (D.C. Cir. 1997)
(internal quotation marks omitted). The government easily met
its burden. Sanabria testified regarding his office’s protocols:
“Each DVD receives a number, and then it is put in its package,
in its case, and it’s given to another division, another agency
within that same work area. And they are in charge of keeping
 34

the chain of custody of the DVD, and they place it in the vault,
which is in an area with restricted access.” Trial Tr. at 175, Jan.
16, 2007. Sanabria and his staff followed these procedures. See
id. at 166–70, 172–75, 192–94. On this evidence, the district
court did not abuse its discretion by admitting these recordings.

B.
Celis contests the admission of a videotaped recording of a
conversation between Alvarez, a cooperating witness, and
Giraldo. The video contained numerous statements by Giraldo,
which the government offered as direct evidence of the
conspiracy. Over appellants’ objections, the district court
admitted the statements under Federal Rule of Evidence
801(d)(2)(E), which permits admission of statements made by
coconspirators in furtherance of a conspiracy. Celis argues the
statements were not meant to further the conspiracy and, in any
event, the conspiracy had ended by the time they were made.
We review for clear error the court’s determinations that a
particular statement was made during and in furtherance of a
conspiracy. See United States v. Edmond, 52 F.3d 1080, 1110
(D.C. Cir. 1995). To find clear error, we must be “left with the
definite and firm conviction that a mistake has been committed.”
Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (internal
quotation marks omitted). Our clear error review requires that
we defer to the district court’s evaluation of the statements in
light of the other evidence that has been presented. See
Edmond, 52 F.3d at 1111 (declining to find clear error when the
statements “plausibly may be interpreted” as advancing the
conspiracy).

A statement is made “in furtherance of a conspiracy” when
it

can reasonably be interpreted as encouraging a
[coconspirator] or other person to advance the
conspiracy, or as enhancing a [coconspirator] or other
 35

person’s usefulness to the conspiracy . . . . Such
statements include those that keep a coconspirator
updated on the status of the business, motivate a
coconspirator’s continued participation, or provide
background information on key conspiracy members.

United States v. Carson, 455 F.3d 336, 366–67 (D.C. Cir. 2006)
(internal quotation marks and citations omitted). Celis objects
generally to the entire video, contending that “[a]ll
conversations on the video are hearsay,” Appellant Celis Br. 22,
and he argues specifically that the following admitted statements
were not made in furtherance of the conspiracy.

First, Celis claims that Giraldo’s statements relating to
Celis’s debt to Valderama and the lost shipment of cocaine are
inadmissible “past narratives” and were not made in furtherance
of the conspiracy. Appellant Celis Br. 28. The district court did
not clearly err here. In United States v. Perholtz, we held that a
past narrative may be admissible if it is “part[] of continuing
activity that was essential to” the conspiracy. 842 F.2d 343, 357
(D.C. Cir. 1998). It is plausible that Giraldo made his
statements to keep Alvarez informed about the current status of
the conspiracy, ensuring that all coconspirators had up-to-date
information. Indeed, this is precisely the kind of example we
envisioned in United States v. Carson. 455 F.3d at 366–67
(holding that statements that “updated [others] on the status of
the business” were admissible).

Second, Celis argues that statements Giraldo made about his
personal access to Ramirez, his knowledge of drug routes, and
his history in the drug business were “grandstanding” and “mere
exaggeration.” Appellant Celis Br. 28–29. As we stated in
Carson, if one’s statement can be understood as enhancing one’s
usefulness to the conspiracy, it is admissible. See 455 F.3d at
366–67. We view these statements as Giraldo demonstrating
 36

how he can be a more effective member of the conspiracy and
conclude there was no clear error in their admission.

Finally, Celis labels some conversations as “idle chatter.”
Appellant Celis Br. 28–29. These include statements made by
Giraldo while Alvarez was persuading him to remain in the car
so she could continue to record him, statements made by Giraldo
while having a short telephone conversation, and Giraldo’s
description of Ramirez as “dangerous.” Though these
statements did not further the conspiracy, we agree with the
government that any error in their admission was harmless. In
view of the mountain of evidence concerning Celis’s culpability,
which we have already detailed, none of these statements were
prejudicial. Likewise, we have carefully reviewed the remaining
statements made during this conversation and conclude that
Celis’s general objection to the recording lacks merit.
Statements not specifically identified by Celis undeniably
furthered the conspiracy. See, e.g., Video Tape Exhibit N-6
(May 22, 2003) at 10 (“First of all, was that merchandize [sic]
going to New York or to Miami?”); id. at 11 (“How much was
it sold for?”).

The district court also did not clearly err by concluding that
the conspiracy remained intact at the time of Giraldo’s
statements. By this point, Celis suggests, the conspiracy “was
broken and no longer functioning” because Valderama had
threatened to kill Celis in 2002 over an outstanding debt from an
earlier drug shipment. Appellant Celis Br. 24. Though there was
evidence that Valderama did threaten to kill Celis, the
conspiracy remained alive. Indeed, the government introduced
a recording of Celis and Giraldo from May 20, 2003, which
demonstrates they were still in communication regarding the
conspiracy. In addition, Alvarez testified that Giraldo had
informed her on May 22, 2003 that Celis continued to attempt
to sell Valderama’s cocaine to pay off his outstanding debt. See
Trial Tr. at 694, Jan. 18, 2007. Given this evidence, the district
 37

court did not clearly err by finding that the conspiracy remained
intact at the time of the recording. Admitting the videotaped
recording, therefore, was not an abuse of discretion.

V.

Appellants raise two challenges regarding the indictment.
First, Giraldo argues the district court erred by denying his
motion to sever the indictment. Next, Celis argues the evidence
at trial impermissibly varied from the indictment. We reject each
challenge.

A.
Giraldo asked the district court to sever the indictment so
that he would be tried separately from Valderama. The district
court denied the request. Federal Rule of Criminal Procedure 14
permits the district court to sever an indictment if “the joinder
of offenses . . . appears to prejudice a defendant.” FED. R.
CRIM. P. 14. The Supreme Court has instructed district courts
to grant severance “only if there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants,
or prevent the jury from making a reliable judgment about guilt
or innocence.” Zafiro v. United States, 506 U.S. 534, 539
(1993). District courts should grant severance sparingly because
of the “strong interests favoring joint trials, particularly the
desire to conserve the time of courts, prosecutors, witnesses, and
jurors.” United States v. Mardian, 546 F.2d 973, 979 (D.C. Cir.
1976). We review the denial of a motion to sever for abuse of
discretion, which we will not find “if the jury could reasonably
compartmentalize the evidence introduced against each
individual defendant.” United States v. Mejia, 448 F.3d 436,
446 (D.C. Cir. 2006) (internal quotation marks omitted).

Valderama was a member of the FARC. Giraldo was not.
Giraldo claims he was prejudiced by the joint trial because the
government introduced evidence relating to FARC atrocities that
 38

had nothing to do with him. If the indictment had been severed,
Giraldo argues, the jury would have considered his guilt or
innocence without hearing a word about the FARC. That may
well be true, but it does not follow that the jury was incapable of
fairly assessing Giraldo’s guilt. We have found juries capable
of determining the guilt or innocence of an individual tried
alongside others when the prosecution presents “independent
and substantial” evidence regarding each defendant’s
culpability. United States v. Halliman, 923 F.2d 873, 884 (D.C.
Cir. 1991). At trial, the government offered ample evidence of
Giraldo’s personal involvement in the conspiracy. Indeed, the
evidence against Giraldo involved far more than unproven
allegations of an association with the FARC. See, e.g., Trial Tr.
at 602, Jan. 18, 2007 (describing Giraldo’s role in arranging a
meeting between Alvarez and Ramirez); id. at 621 (describing
Giraldo’s role in informing Valderama that Celis’s shipment had
been confiscated); Trial Tr. at 1157, Jan. 25, 2007 (describing
Giraldo’s role in shipping 400 kilograms of cocaine to the
United States); id. at 1164–65 (describing the plan to ship
cocaine “via the routes [Giraldo] maintained to the United
States”). The jury could assess his personal culpability because
it heard a significant amount of evidence relating to his own
unlawful acts quite apart from anything said about the FARC.

Moreover, the district court instructed the jury to base its
evaluation of each defendant’s guilt on his or her own conduct
— not that of the FARC:

[T]he FARC is not a defendant in this case, and the
defendants are not on trial for having knowledge of, or
being associated with, the FARC. . . . [T]he government
must prove as to each defendant that he or she
knowingly and willfully joined and participated in the
conspiracy.
 39

Trial Tr. at 2253, 2256, Feb. 7, 2007. This instruction fully
addressed Giraldo’s concern. Because the jury is “presumed to
follow [its] instructions,” Zafiro, 506 U.S. at 540, “these
instructions cured any possible risk of prejudice,” Carson, 455
F.3d at 375. The independent evidence of Giraldo’s guilt and
the court’s instruction lead us to conclude that the jury could
separate the evidence against Giraldo from the evidence against
his co-defendants. The district court did not abuse its discretion
by denying his motion to sever.

B.
Celis claims that his trial was unfair because the
government offered evidence of multiple conspiracies, although
the indictment charged him with only one. The government’s
evidence, he argues, described criminal activity beyond what
was alleged in the indictment. If Celis were correct that the
government presented evidence of multiple conspiracies, he may
also be correct that the jury might well have conflated evidence
of crimes for which he was not charged with evidence of the
offenses for which he was indicted. Even so, “[a] variance
between the allegations of the indictment and the proof at trial
constitutes grounds for reversal only if the appellant proves
(1) that the evidence at trial established facts materially variant
from those alleged in the indictment, and (2) that the variance
caused substantial prejudice.” Tarantino, 846 F.2d at 1391.
Even if we assume that the trial evidence varied from the
indictment, Celis cannot prove prejudice, which requires a
showing that the jury was “substantially likely” to consider
evidence of a crime for which he was not indicted in its
assessment of his guilt. Id.; see United States v. Gaviria, 116
F.3d 1498, 1533 (D.C. Cir. 1997). Celis claims that the
government’s evidence of others’ crimes was “intermingled with
testimony regarding Celis, making it difficult to parcel out and
separately consider.” Appellant Celis Br. 17. We look to three
factors to determine how difficult it was for a jury to separate
allegations against multiple defendants.
 40

First, the number of co-defendants is significant because
jurors will be less likely to transfer guilt from one defendant to
another when there are only a few. See Gaviria, 116 F.3d at
1533. We have found that the trial of four co-defendants
presented no possibility of spillover prejudice even when the
government put on evidence that varied from the crimes charged
in the indictment. See, e.g., id.; United States v. Mathis, 216
F.3d 18, 25 (D.C. Cir. 2000). With only three co-defendants, the
risk of spillover prejudice was not substantial, see Gaviria, 116
F.3d at 1533, and we conclude that the jury could have
distinguished among the crimes and determined without great
difficulty what evidence fit which defendant.

Second, “the danger of spillover prejudice is minimal when
the Government presents tape recordings of individual
defendants.” Id. Recordings of telephone calls of Celis,
Valderama, and Giraldo were put into evidence, as well as a
video recording of Giraldo’s conversation with Alvarez. When
the government presents an audio or video recording of the
defendant discussing criminal acts, the risk of prejudicial
spillover is minimal because the jury has “no need to look
beyond each defendant’s own words in order to convict.”
United States v. Anderson, 39 F.3d 331, 348 (D.C. Cir. 1994)
(internal quotation marks omitted), rev’d in part on other
grounds, 59 F.3d 1323 (D.C. Cir. 1995) (en banc).

Third, we consider whether the district court eliminated any
potential prejudice through a clarifying jury instruction. When
the jury is “properly instructed that proof of several conspiracies
is not proof of the single conspiracy charged, the risk of
prejudicial error is greatly diminished, if not eliminated
altogether.” United States v. Flood, 965 F.2d 505, 509 (7th Cir.
1992). Here, the court instructed the jury to acquit if it found
the defendants had participated in a conspiracy other than that
alleged in the indictment:
 41

[I]f you find from all the evidence that one or more
separate conspiracies existed, you must determine
whether at least one of them is the single conspiracy
that the indictment charges. If you should find that a
particular defendant was a member of a separate
conspiracy but not the one charged in the indictment,
then you must acquit that defendant.

Trial Tr. at 2258, Feb. 7, 2007. We assume juries follow their
instructions, see Zafiro, 506 U.S. at 539–41, and Celis raises no
argument nor proffered evidence that would suggest to us that
the jury did not heed the court’s admonition. See United States
v. Clarke, 24 F.3d 257, 264 (D.C. Cir. 1994) (“To find reversible
error, we would have to conclude that the jury disregarded the
court’s instructions.”). This instruction, therefore, “cure[d] any
risk of prejudice.” Carson, 455 F.3d at 374–75.

In light of the small number of co-defendants, the audio
recordings of each defendant, and the explicit jury instruction,
we hold that any purported variance from the indictment was not
prejudicial to Celis and does not warrant reversal.

VI.

We conclude by considering Valderama’s remaining
contentions that the evidence was insufficient to warrant a
conviction, the trial was fundamentally unfair, and the district
court abused its discretion in denying her motion for a new trial.
None is persuasive.

A.
Putting to one side the videotapes and audio recordings she
argues should never have been admitted into evidence and the
Confrontation Clause errors she claims infected much of the
trial, Valderama asserts that the remaining “untainted” evidence
was insufficient to convict her as a matter of law. Of course, we
 42

have just concluded that all of the “tainted” evidence cited by
Valderama was properly admitted and that there were no
Confrontation Clause errors. Because Valderama’s argument
proceeds from a flawed premise, we need not refute her
hypothetical allegations of error. Thus, we consider only
whether the properly admitted evidence was sufficient for “any
rational trier of fact [to] have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Arrington,
309 F.3d 40, 48 (D.C. Cir. 2002) (internal quotation marks
omitted). We have no difficulty concluding that the evidence
supported the jury verdict against Valderama. The government
presented detailed, eye-witness testimony that she coordinated
the production, refining, and distribution of massive quantities
of cocaine in connection with the indicted conspiracy.
Likewise, the jury heard evidence that Valderama attended
relevant meetings for the purpose of initiating and then
executing the charged conspiracy.

To the extent that Celis and Giraldo have joined this
argument, our conclusion applies equally to them. The jury
heard uncontroverted evidence regarding their involvement in
the conspiracy, including recordings of Celis and Giraldo
discussing their criminal activities. Viewing the evidence in the
light most favorable to the government, as we must, see United
States v. Martinez, 476 F.3d 961, 968 (D.C. Cir. 2007), there is
no doubt that the evidence was sufficient to convict each
appellant.

B.
Valderama argues that the totality of errors committed by
the district court deprived her of a fair trial. This claim is
nothing more than a restatement of every objection she raised
before and during trial. Valderama contends that the
aggregation of these errors “worked a grave injustice,” depriving
her of her constitutional right to a fair trial. Appellant
Valderama Br. 38. Valderama directs our attention to Egan v.
 43

United States for the proposition that the cumulative effect of
many errors can render a verdict reversible. 287 F. 958, 971
(D.C. Cir. 1923); see United States v. Brown, 508 F.3d 1066,
1076 (D.C. Cir. 2007). In Egan, we noted that even though
individual errors may not be sufficient to warrant reversal, the
total effect of numerous small missteps may deprive a defendant
of a fair trial. True enough, but Egan requires the defendant to
make a showing of prejudice, see 287 F. at 971, which
Valderama has not done.

C.
Finally, in two conclusory sentences, Valderama argues the
district court abused its discretion by denying her motions
requesting a new trial. See Appellant Valderama Br. 37. At
sentencing, Valderama so moved in light of her discovery of the
faint fax header on Valdez’s statement to the Colombian
authorities. See supra Part III. Additionally, Valderama moved
for a new trial because Valdez made post-trial statements to
DEA agents that purportedly contradicted his trial testimony.
See Sentencing Tr. at 5–9, July 2, 2007. Valderama contended
that these statements impeached Valdez’s testimony.

We review a district court’s decision to deny a motion for
new trial for abuse of discretion. See United States v. Johnson,
519 F.3d 478, 487 (D.C. Cir. 2008). To obtain a new trial
because of newly discovered evidence, a defendant must satisfy
five requirements:

(1) the evidence must have been discovered since the
trial; (2) the party seeking the new trial must show
diligence in the attempt to procure the newly
discovered evidence; (3) the evidence relied on must
not be merely cumulative or impeaching; (4) it must be
material to the issues involved; and (5) [it must be] of
such nature that in a new trial it would probably
produce an acquittal.
 44

Id. (quoting United States v. Lafayette, 983 F.2d 1102, 1105
(D.C. Cir. 1993)). This is a high bar to cross, and Valderama
does not come close to reaching it. In light of the overwhelming
evidence of guilt, we conclude that in a new trial these two
pieces of evidence would not “probably produce an acquittal.”
See id.

Accordingly, we affirm the judgments of conviction.