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.
-38-
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-