United States v. Rivera-Rosario

United States Court of Appeals
For the First Circuit

No. 02-1220

UNITED STATES OF AMERICA,

Appellee,

v.

GABRIEL MORALES-MADERA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, Chief U.S. District Judge]

Before

Lynch, Circuit Judge,
Lipez, Circuit Judge,
Oberdorfer, Senior District Judge*.

Johnny Rivera-Gonzalez for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, and Sonia I. Torres, Assistant
United States Attorney, were on brief, for appellee.

November 20, 2003

*
Of the United States District Court for the District of
Columbia, sitting by designation.
 LYNCH, Circuit Judge. In our increasingly pluralistic

and multilingual society, the issues raised by this case will grow

in importance. This case arises in the federal courts of Puerto

Rico. These courts often face the difficult task of admitting

evidence that originates in the Spanish language while seeking to

comply with the Jones Act, 48 U.S.C. § 864, which requires that

court proceedings be conducted in English. In this case, the

evidence involved fifty-two recordings of wiretapped conversations

in Spanish among members of a drug importation and distribution

conspiracy.

The defendant, Gabriel Morales-Madera, was convicted of

participating in a massive drug conspiracy. He was sentenced to

250 months imprisonment and six years of supervised release. On

appeal, the primary issue raised is that English-language

transcripts of the wiretapped conversations were neither marked as

exhibits nor admitted in evidence, and that the court reporter did

not transcribe and translate the wiretapped conversations into the

record as the tapes were being played.

Morales-Madera urges this court to adopt a bright-line

rule that where English transcripts of taped conversations

conducted in Spanish are not admitted in evidence, there is such

harm to the national interest in maintaining English as the

language of the courts that any ensuing conviction should be

overturned. He reads our opinion in United States v.

-2-
Rivera-Rosario, 300 F.3d 1 (1st Cir. 2002), to require that result.

We reject both his reading of Rivera-Rosario and his proposed

bright-line rule. Instead, we evaluate a number of factors, taking

into account the nature of the problem at trial, the objections

made by the defendant below, the use of Fed. R. App. P. 10(e) to

supplement the record for purposes of appellate review, and any

prejudice to the defendant. Morales-Madera also argues that there

was insufficient evidence to convict and that there were sentencing

errors. We reject his challenges to his conviction and affirm.

I.

Because the jury returned a guilty verdict as to Morales-

Madera, we state the facts in the light most favorable to his

conviction.

On December 10, 1997, a federal grand jury returned a

four-count indictment against twenty-four defendants allegedly

involved in a drug trafficking organization. Count One charged

that from about December 1994 until the time of the indictment,

Morales-Madera and twenty-two other individuals conspired to

distribute and to possess with the intent to distribute more than

five kilograms of cocaine, one kilogram of heroin, and multi-pound

quantities of marijuana, in violation of 21 U.S.C. § 846.

Morales-Madera was tried alone in a four-day jury trial

that started on August 6, 2001. At trial, FBI Special Agent Carlos

Cases testified that Federico Naranjo-Rosa and his nephew Carlos

-3-
Gutierrez-Naranjo operated a drug-trafficking organization.

According to Agent Cases's testimony, the organization imported

cocaine and heroin from the Dominican Republic and Columbia and

distributed marijuana in Puerto Rico. Agent Cases testified that

Morales-Madera was Naranjo-Rosa's right-hand man and had the task

of collecting drug debts and helping Naranjo-Rosa obtain drugs from

the Dominican Republic.

The government played to the jury recordings of fifty-two

tapes of telephone conversations between the conspirators that were

intercepted and recorded by the FBI pursuant to a wiretap order.

These wiretapped conversations took place in Spanish. The court

reporter did not transcribe or translate the contents of the tapes

in the record. Instead, the government provided Spanish

transcripts of the tapes and English translations of those

transcripts to the district court, the jury, and defense counsel at

trial.1 The jury used the transcripts as aids while the wiretap

tapes were played, and returned the transcripts to the government

afterwards. The court instructed the jury to "consider in [their]

deliberations what [they] heard on tape, not what the transcript

says." The transcripts were not marked as exhibits or entered in

evidence, and they were not taken into the jury room during

1
Transcripts were provided for each tape played to the
jury except for Exhibit No. 4, which Agent Cases testified was a
tape of a conversation on April 5, 1997 between Naranjo-Rosa and
co-conspirator Rivera-Rosario regarding two planned shipments of
500 kilograms of cocaine.

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deliberations. At trial, defense counsel did not object to the use

of the transcripts or to their accuracy.

According to Agent Cases's testimony, most of the

wiretaps consisted of conversations using coded language to discuss

drug sales and the collection of drug debts. Nine tapes involved

wiretapped conversations between Morales-Madera and Naranjo-Rosa in

April and May 1997. In one conversation on April 15, Morales-

Madera referred in coded language to returning bad drugs in

exchange for good drugs. Later that day, Morales-Madera called

Naranjo-Rosa to ask how much money he should collect for twenty

kilograms of cocaine ("twenty parts"). After consulting with

Gutierrez-Naranjo, Naranjo-Rosa called Morales-Madera back to tell

him in coded language that the price would be $15,000 per kilogram.

On April 18, Naranjo-Rosa and Morales-Madera discussed a $30,000

debt owed to Gutierrez-Naranjo. During the conversation, Naranjo-

Rosa became upset because Morales-Madera used non-coded language to

discuss the debt, and warned Morales-Madera that his phone might be

tapped. On April 29, Naranjo-Rosa told Morales-Madera that they

had five-eighths of a kilogram, or 625 grams, of heroin ("five

whitewall tires"), for which the two discussed an appropriate

price. The two also discussed the collection of debt for cocaine

("parts"). On April 30, Naranjo-Rosa instructed Morales in coded

language to call someone who would give him $45,000, and the two

discussed cocaine ("tires"). In three conversations on May 1 and

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2, the two made plans to purchase heroin ("15 wide whitewall

tires") in the Dominican Republic and discussed in coded language

$1,000 that was missing from a $39,000 payment.

Another tape involved a phone call on April 11 from

Morales-Madera, who was using Naranjo-Rosa's wiretapped phone, to

American Airlines to arrange their flight to the Dominican Republic

that day. FBI Agent Cases testified, based on other wiretapped

conversations, that the purpose of this trip was to purchase heroin

to be imported into Puerto Rico.

The government also played tapes of conversations in

which Morales-Madera did not participate. Three tapes involved

coded discussions by co-conspirators regarding Morales-Madera's

activities. On April 15, Naranjo-Rosa and Gutierrez-Naranjo

discussed Morales-Madera's call to Naranjo-Rosa earlier that day,

in which Morales-Madera had asked how much money he should collect

for twenty kilograms of cocaine. Later that same day, Naranjo-Rosa

told Gomez-Felix that he would send him money via Morales-Madera.

On April 30, Naranjo-Rosa and Gomez-Felix discussed four and one-

half eighths of a kilogram of heroin that Naranjo-Rosa and Morales-

Madera were supposed to pick up from the Dominican Republic.

Approximately thirty other recordings involved coded conversations

between co-conspirators about drug importation or distribution.

In addition to the wiretapped conversations, the

government introduced passports, boarding passes, and testimony

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from Agent Cases about Morales-Madera's travel to the Dominican

Republic. Morales-Madera traveled to the Dominican Republic with

Naranjo-Rosa on April 11 and again on April 21. Morales-Madera

also took one trip to the Dominican Republic with Naranjo-Rosa's

cousin on May 2.

Morales-Madera testified at trial in his own defense. In

his testimony, he admitted that he had sought to collect debts owed

to Gutierrez-Naranjo and that he had assumed at the time that those

debts were drug-related.

On August 9, 2001, the jury found Morales-Madera guilty

of Count One of the indictment. On January 22, 2002, Morales-

Madera was sentenced to 250 months imprisonment, plus a supervised

release term of six years and a special monetary assessment of

$100. Seeking to reverse his conviction and sentence, Morales-

Madera filed this appeal.

II.

A. English Language Issue

This issue involves two statutes: (1) the Jones Act, 48

U.S.C. § 864, which provides that "[a]ll pleadings and proceedings

in the United States District Court for the District of Puerto Rico

shall be conducted in the English language," and (2) the Court

Reporter Act, 28 U.S.C. § 753(b), which requires that "all

proceedings in criminal cases [held] in open court . . . shall be

recorded verbatim."

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 Morales-Madera's first theory confuses the different

statutes and different types of evidence. He argues that the Court

Reporter Act required the reporter to transcribe literally and

somehow translate into English the wiretap tapes as they were

played to the jury. That, in our view, is a misreading of the

statute. When the court reporter transcribes the testimony of a

witness who testifies in Spanish, the interpreter's English

translation is the evidence entered in the record under the Jones

Act. United States v. De Jesus Boria, 518 F.2d 368, 370 (1st Cir.

1975); Bordas & Co. v. Pizarro, 314 F.2d 291, 292 (1st Cir. 1963).

The playing of recordings, however, presents a different issue.

The conversations on the wiretap tapes are not testimony from

witnesses before the court that must be recorded in a verbatim

transcript.2

Language in some opinions, ours and others, indicates

that the Court Reporter Act is violated when the court reporter

fails to simultaneously transcribe the contents of recordings heard

by the jury. See United States v. Andiarena, 823 F.2d 673, 676

(1st Cir. 1987); United States v. McCusker, 936 F.2d 781, 785 (5th

Cir. 1981). We harbor considerable doubts about this proposition.

The Court Reporter Act is not usually understood to require the

2
Even if the Court Reporter Act were violated because a
verbatim transcript was not available, reversal of the conviction
would not automatically be required. United States v. Brand, 80
F.3d 560, 563 (1st Cir. 1996).

-8-
reporter to record separately the contents of exhibits admitted in

evidence. The tapes of the recordings are not testimony but are

themselves admitted in evidence as exhibits. See United States v.

Young, 105 F.3d 1, 10 (1st Cir. 1997); United States v. Craig, 573

F.2d 455, 480 (7th Cir. 1977) (finding "no merit" to the argument

that there was a violation of the Court Reporter Act because the

reporter did not transcribe the recorded conversations). We held

in United States v. Rengifo, 789 F.2d 975 (1st Cir. 1986), that a

transcript of a composite audio recording was not "testimony" even

when the transcript was read aloud to the jury. Id. at 977, 983.

At any rate, this issue need not be resolved. Even among those

courts that find an error under the Court Reporter Act based on the

failure to transcribe an audio recording, it is agreed that the

error is harmless when the recording itself is entered in the

record. See Andiarena, 823 F.2d at 676; McCusker, 936 F.2d at 785.

Morales-Madera's next argument is a Jones Act claim that

implicates several issues. At the trial level, separate issues

arise regarding the submission of English transcripts of Spanish

audio recordings to the jury as aids, the proper procedures for

ensuring reliable transcription of the taped conversations and

reliable translation of those transcripts into English, and the

admissibility of English transcripts as evidence. At the appellate

level, issues arise regarding compliance at the trial court level

with the Jones Act and the Court Reporter Act, the adequacy of the

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record on which appellate review is based, and the appropriate

remedy for non-compliance.

1. Submitting English Transcripts to the Jury

When an audio recording is in English, the common

practice is to play the recording, make a transcript available,

mark the transcript as an exhibit, and use it as an aid. Our

court, and many others, have approved such use of transcripts as

aids to the jury, provided the court makes clear to the jury that

the tape rather than the transcript constitutes the best evidence.

United States v. Ademaj, 170 F.3d 58, 65 (1st Cir. 1999). In

ordinary circumstances, the district court does not abuse its

discretion in allowing the jury to use the transcripts during

deliberations. Rengifo, 789 F.2d at 980.

Providing an English-language transcript of wiretap

evidence is more than merely useful when the recorded language is

not English; for Jones Act purposes, it is necessary. The language

of the federal courts is English. Participants, including judges,

jurors, and counsel, are entitled to understand the proceedings in

English.3 Even apart from the mandates of the Jones Act, in Puerto

Rico, where Spanish is the primary language of most of the

3
The public shares that entitlement to proceedings in
English. But the rights of the public are not impaired here. All
proceedings were in English; the only complaint is that the wiretap
tapes were in Spanish.

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population, there are nevertheless jurors, parties, and counsel

whose primary language is English.

Here, the submission of English transcripts was required,

assuming the transcripts were translated and transcribed accurately

(an issue discussed infra). Unlike in Rivera-Rosario, where the

"English translation was . . . cast aside" and the jurors used

Spanish transcripts instead, 300 F.3d at 5, the English transcripts

here were made available to the jurors and used while the tapes

were playing. Furthermore, in this case, counsel made no objection

below to the provision of the English transcripts to the jury.

2. Ensuring the Reliability of Translation and of
Transcription When Using English Transcripts

Before transcripts may be submitted to the jury even as

aids, issues must be addressed both about the reliability of the

transcription in the original language of the wiretaps and about

the accuracy of the translation of those transcripts from the

original language to English (here, from Spanish to English).

Commonly, the transcripts and the English translations of those

transcripts are produced by the government and copies are then

given to the defendant. Sound trial management and considerations

of fairness caution that the government provide these copies to

defense counsel adequately in advance, so that disputes concerning

the reliability of the transcription in the original language and

of the English translation may be brought to the attention of the

-11-
district court or resolved by agreement. Counsel, of course, may

agree to the accuracy in both senses.

This court outlined in Rengifo the proper procedure for

addressing transcription error:

We believe that it is advisable for the district court to
try to obtain a stipulated transcript from the parties
before trial or, at least, before a transcript is used.
Failing such stipulation, each party should be allowed to
introduce its own transcript of the recording provided
that it is properly authenticated. When the jury
receives two transcripts of the same recording, it
should, of course, be instructed that there is a
difference of opinion as to the accuracy of the
transcripts and that it is up to them to decide which, if
any, version to accept. The jurors should also be
instructed that they can disregard any portion of the
transcript (or transcripts) which they think differs from
what they hear on the tape recording. Further limiting
instructions will depend on the circumstances of each
case.

789 F.2d at 983. In short, if the defendant believes the

transcription of the tape is in error as to what was said, then the

dispute should be brought to the attention of the court. Usually,

the judge either makes a determination as to the correct

transcription after listening to the tape or determines that the

dispute is an issue of fact for the jury to decide. This procedure

applies to transcription disputes regarding both English and non-

English transcripts.

In the case of tapes of non-English conversations,

however, there is the additional problem of potential translation

error. If the parties do not agree that the English transcript

submitted is correctly translated, the preferred solution is to

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obtain agreement from counsel as to an accurate translation. If

agreement is not possible, the district court should have the

parties present testimony from translators and allow the jury to

decide the issue. See Weinstein & Berger, Weinstein's Federal

Evidence § 901.09.

Here, because Morales-Madera did not object to the

accuracy of the translation or the transcription and he makes no

claim on appeal that the English transcripts before the jury were

inaccurate, no issue of that type is before us.

3. Admitting English Transcripts In Evidence

Once translation and transcription disputes have been

addressed and the transcripts have been submitted to the jury for

its use, parties using audio recordings in other languages should

ensure that the English transcripts become part of the record by

introducing them in evidence.4 The English transcripts should be

marked and admitted in evidence in addition to the wiretaps

themselves.5 The issue of jury instructions was not raised either

at trial or on appeal and has not been briefed, so it is not before

4
The trial court retains discretion as to what documentary
evidence the jury is permitted to have during deliberations. See
United States v. McCarthy, 961 F.2d 972, 978 (1st Cir. 1992)
("Whether . . . evidentiary exhibits properly admitted should or
should not accompany the jury to the jury room is a discretionary
matter for the trial court." (internal quotation marks omitted)).
5
Where, by contrast, the conversations on the tape are in
English, the transcript is often marked as an exhibit for
identification without being admitted.

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us. Nonetheless, in these circumstances hereafter, an instruction

that the jury should consider only what is on the tape and not what

is in the English transcript would not be appropriate.

Parties frequently, as here, use the transcripts only as

aids and fail to admit them in evidence. The usual reason given

for not introducing transcripts in evidence is that the wiretap

tapes themselves are the best evidence of the conversation, not the

transcripts. See, e.g., United States v. Warner, 204 F.3d 799, 801

(8th Cir. 2000); Fed. R. Evid. 1002 ("To prove the content of a

writing, recording, or photograph, the original writing, recording,

or photograph is required . . . .").

The best evidence rule requires that the tape recordings

themselves must be furnished, absent agreement to the contrary, but

does not require that English translations of those tapes be

excluded from evidence. Non-English recordings present unique

problems of compliance with the Jones Act, which requires

proceedings to be conducted in English. Accordingly, almost 20

years ago, this court approved the introduction in evidence of

English transcripts for wiretaps of Spanish conversations, provided

the reliability issues were worked out. Rengifo, 789 F.2d at 983.6

The Eleventh Circuit reached the same conclusion about the

admission in evidence of English transcripts of recorded

6
Because the Rengifo case arose in Massachusetts, it did
not present Jones Act issues.

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conversations in Spanish in United States v. Cruz, 765 F.2d 1020,

1022-24 (11th Cir. 1985), as did the Seventh Circuit in United

States v. Jordan, 223 F.3d 676, 688 (7th Cir. 2000). This practice

of admitting reliable English transcripts in evidence is entirely

consistent with the best evidence rule. The rationale behind the

best evidence rule -- that "the [recording itself] is a more

reliable, complete and accurate source of information as to its

contents and meaning than anyone's description" of it, Gordon v.

United States, 344 U.S. 414, 421 (1953) -- is not undercut when the

original recording is played to the jury and the undisputedly

accurate English transcript is admitted in evidence. See United

States v. Holton, 116 F.3d 1536 (D.C. Cir. 1997) ("concerns

addressed by the best evidence rule are not at issue" in this

situation).

Here, the government concedes that it committed error in

failing to enter the English transcripts in the record.

4. Adequacy of English-Language Record for Judicial Review

Where, as here, English transcripts are not part of the

record, the issue arises of creating a sufficient record to allow

judicial review under the Jones Act. This problem exists not only

on appellate review but also in the district court's review of the

record when deciding Rule 29 motions.

Here, Morales-Madera's argument focuses on the adequacy

of appellate review. In simple terms, he argues that because the

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trial record before this court has no English translation of the

many wiretaps played to the jury, this court is unable to review

the record to determine if the evidence was sufficient to convict.

Absent the wiretaps, he says, the remaining evidence is plainly

insufficient. He argues that Rivera-Rosario compels acceptance of

his position.

We reject Morales-Madera's argument that Rivera-Rosario

controls this case. This court's opinion in Rivera-Rosario is

distinguishable on several grounds. Unlike this case, Rivera-

Rosario involved a situation in which the jury was deprived of

having English-language transcripts at all. Rivera-Rosario

involved a unique sequence of events:

1. the government failed to provide English transcripts in advance,

thus apparently depriving the defendants of a fair opportunity to

raise and resolve issues of reliability as to the 180 tapes that

constituted the heart of the government's case;

2. there was a dispute raised by the defendants at trial about the

accuracy of the English translation of the transcripts of the

wiretap tapes;

3. that dispute was neither resolved by the trial court by

obtaining agreement nor submitted to the jury for resolution;

4. as a consequence, and this is a key distinction, the English

transcripts were never submitted to the jury at all;

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5. this problem was not mooted by the court reporter's transcribing

the taped conversations as they were played in open court7 or by

the parties agreeing on or the jury determining the correct

translation;

6. the government then failed to comply with the procedures of Fed.

R. App. P. 10(e), which allow the government to supplement the

record;

7. thus, the Court of Appeals was placed in the position of

resolving a factual dispute as to the English translation.

300 F.3d at 5-9.

We trust that this sequence of events will not recur and

that the U.S. Attorney's Office in Puerto Rico will meet its

obligations.8 Because the sequence of events here differs and the

jury did have English transcripts, we do not apply Rivera-Rosario's

reversible-error rule that "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." Id. at 10.

7
As we have said, this procedure is not a required one.
8
This court was informed that the U.S. Attorney's Office
in Puerto Rico often does not prepare transcripts until it is clear
that defendants will not plead guilty. The government may not,
however, spring translated transcripts of wiretapped conversations
on defense counsel at the last minute without raising the concerns
discussed in this opinion.

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 Instead, we hold that because Morales-Madera did not

raise his Jones Act claim in the trial court in the context of the

facts of this case, our review of his claim is for plain error.

See United States v. Olano, 507 U.S. 725, 731 (1993). A plain

error is one that "seriously affects the fairness, integrity or

public reputation of judicial proceedings." Id. at 732 (quotation

marks, alterations, and citation omitted). In other words, an

error is plain if "a miscarriage of justice would otherwise

result." United States v. Young, 470 U.S. 1, 15 (1985).

The government has conceded that a Jones Act error

occurred when it failed to introduce the English transcripts in

evidence or mark those transcripts as exhibits. On appeal, the

government sought to use Fed. R. App. Proc Rule 10(e) to supplement

the record with copies of the English transcripts actually used at

trial. The framers of the Federal Rules of Appellate Procedure,

who anticipated a generic class of problems involving insufficiency

of the record, created the following procedure in Rule 10(e):

If anything material to either party is omitted from or
misstated in the record by error or by accident, the
omission or misstatement may be corrected and a
supplemental record may be certified and forwarded:
(A) on stipulation of the parties;
(B) by the district court before or after the
record has been forwarded; or
(C) by the court of appeals.

At least where there is no issue of transcription or translation

error and where the jurors and other participants had the English

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transcripts available to them during the trial, the Rule 10(e)

procedures may be used to supplement the record.

Here, however, the government's attempt to supplement the

record failed to comply with Rule 10(e). The government did not

obtain a stipulation from defense counsel or submit the transcripts

to the district court for certification. Instead, the government

simply filed in the district court what the government said were

accurate copies, with a request that they be transmitted to the

court of appeals. The clerk of the district court did so within a

day, without the trial court ever certifying that the copies

submitted were accurate copies of the English transcripts used at

trial. The defendant did not object to the trial court or to this

court that these were not accurate copies of what had been used at

trial, preferring to rely on his argument that the government could

not supplement the record at all.

While the defendant may have forfeited and/or waived any

objection that the submitted transcripts are not accurate copies of

the transcripts before the jury, we are reluctant to review a

criminal conviction based on English transcripts that may not be

accurate copies of those used at trial. Accordingly, at oral

argument, we asked counsel to confer and advise us whether they

could agree that the transcripts submitted by the government are

accurate copies of those used at trial. We were explicit that the

inquiry did not include issues of transcription or translation

-19-
error; those issues were forfeited at trial and waived in this

court. The parties reported back to us that the transcripts are

indeed the same as those used at trial. We therefore accept the

transcripts as supplementing the record under Rule 10(e). We do,

however, urge the Office of the U.S. Attorney in Puerto Rico to be

more mindful of the requirements of Rule 10(e) in the future.

With the addition of these transcripts, the English-

language record is sufficient for appellate review. Fifty-one of

the fifty-two wiretaps have been transcribed and translated into

English. One wiretap tape (Exhibit No. 4) is beyond our review

because the government did not provide the jury with English

transcripts of it. Relying on Rivera-Rosario, Morales-Madera

argues that this tape might contain evidence that undermines

confidence in the jury's verdict, even if other evidence on the

record would otherwise be sufficient to sustain his conviction. We

disagree. In Rivera-Rosario, the court was unable to review any of

the 180 tapes, 300 F.3d at 12, whereas we are able to review all

but one of the 52 tapes here. Moreover, in Rivera-Rosario, the 180

tapes constituted the "gravamen" of the government's case, whereas

there is no indication that Exhibit No. 4 carries such importance

in this case. The government does not rely on Exhibit No. 4 to

establish Morales-Madera's role in the conspiracy; he is not one of

the conversants and there is no indication that he was even

mentioned in the conversation. Agent Cases provided a summary of

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the contents of the tape to the jury in his testimony, and stated

only that Naranjo-Rosa and Rivera-Rosario were discussing two

planned shipments of 500 kilograms of cocaine and the income they

would receive from those shipments. Agent Cases made no mention of

Morales-Madera. Morales-Madera has given us no reason why Exhibit

No. 4 is likely to subvert the evidence in all the other tapes. We

find no plain error on these facts.

B. Closing Arguments

Morales-Madera argues that the government's closing

arguments were improper. His brief is unclear as to whether those

arguments were transcribed. Counsel, after being asked about the

issue at oral argument, informed the court that the opening and

closing arguments were available for transcription but that

Morales-Madera had not requested that the court reporter transcribe

them. It is his burden to submit such a request, and by failing to

do so, he waived the issue. In any event, the strength of the

government's evidence was overwhelming, and any claim of prejudice

based on the closing argument would have been an uphill battle.

C. Sufficiency of Evidence

In a sufficiency of evidence challenge, we uphold the

verdict unless, viewing the evidence in the light most favorable to

the prosecution, no reasonable jury could have found the defendant

guilty. United States v. Nelson-Rodriguez, 319 F.3d 12, 27 (1st

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Cir. 2003). Here, with the wiretap tapes, the evidence was plainly

sufficient to convict.

To prove the elements of conspiracy, the government must

demonstrate "the existence of a conspiracy, the defendant's

knowledge of the conspiracy, and the defendant's voluntary

participation in the conspiracy." United States v. Gomez-Pabon,

911 F.2d 847, 852 (1st Cir. 1990). To show that the defendant

voluntarily participated in the conspiracy, the government must

demonstrate that the defendant had the intent to agree to the

conspiracy and the intent to effectuate the object of the

conspiracy. United States v. Ruiz, 105 F.3d 1492, 1499 (1st Cir.

1997). This intent may be inferred from circumstantial evidence.

Nelson-Rodriguez, 319 F.3d at 28. But mere association with

conspirators or mere knowledge of the conspiracy's activities is

not sufficient alone to establish guilt. Gomez-Pabon, 911 F.2d at

853.

Here, the evidence was clearly sufficient to establish

the existence of the conspiracy. The jury heard fifty-two

wiretapped conversations in which conspirators used what Agent

Cases testified was coded language such as "cars," "whitewall

tires," and "parts" to discuss the importation and distribution of

drugs.

Agent Cases's testimony and the wiretaps were sufficient

to allow a jury to conclude that Morales-Madera had detailed

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knowledge of the conspiracy's planned importation of heroin from

the Dominican Republic and the conspiracy's pricing and debt

collection practices for cocaine and heroin. Agent Cases testified

that in three wiretapped conversations on April 15, Morales-Madera

used coded language to plan the exchange of bad drugs for good

drugs, discuss pricing of twenty kilograms of cocaine, and

calculate the amount of drug-related debt. Agent Cases also

testified that in coded language in five wiretapped conversations

from April 29 to May 2, Morales-Madera received instructions from

Naranjo-Rosa about the collection of cocaine-related debt,

discussed pricing for 625 grams of heroin that had already been

purchased, and referred to plans to return spoiled heroin that they

had purchased from the Dominican Republic.

A jury could also reasonably infer that Morales-Madera

voluntarily participated in the conspiracy. Morales-Madera was

apparently familiar with the coded references to drugs and prices,

and planned to collect debts and import heroin for the conspiracy.

Other evidence corroborates this interpretation of the wiretaps.

Naranjo-Rosa admitted in one wiretapped conversation that he

suspected his phone was tapped and chastised Morales-Madera for

failing to speak in code, thus corroborating Agent Cases's

testimony that the speakers were using coded language. Morales-

Madera's role as a collector of drug debts is also corroborated by

his non-coded references in one wiretapped conversation to a

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$30,000 debt owed to Gutierrez-Naranjo and his testimony at trial

that he helped collect debts for Guiterrez-Naranjo despite his

belief that those debts were drug-related. Finally, passports and

boarding passes indicate that Morales-Madera did in fact travel to

the Dominican Republic three times with either Naranjo-Rosa or

Naranjo-Rosa's cousin, as described on the wiretaps.

We reject Morales-Madera's sufficiency of evidence

challenge and affirm his conviction.

D. Sentencing Errors

1. Drug Quantity

Morales-Madera argues that the district court erred in

determining that he was responsible for more than 150 kilograms of

cocaine. As a result of this determination, Morales-Madera had a

base offense level of 38. This offense level, combined with his

criminal history category I, resulted in a range of 235 to 293

months imprisonment. The district court sentenced him to 250

months.

We review factual determinations at sentencing for clear

error. United States v. Damon, 127 F.3d 139, 141 (1st Cir. 1997).

Because Morales-Madera did not raise this issue below, our review

is also for plain error. We find no such error.

Under the Sentencing Guidelines, each defendant must be

sentenced based on the amount of drugs that he handled, saw, or

could reasonably have foreseen to be embraced by the conspiracy.

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United States v. Rodriguez, 162 F.3d 135, 149 (1st Cir. 1998);

U.S.S.G. § 1B1.3 & cmt. 2. This determination must be based on a

preponderance of evidence. United States v. Nieves, 322 F.3d 51,

54 (1st Cir. 2003).

Here, the government relies on trial testimony from Agent

Cases about a wiretapped conversation between Naranjo-Rosa and

Rivera-Rosario about two planned shipments of 500 kilograms of

cocaine. This amount, the government contends, was foreseeable to

Morales-Madera because of his close relationship with Naranjo-Rosa.

Morales-Madera, on the other hand, argues that Agent Cases's trial

testimony is based on a wiretapped conversation for which the jury

was not provided an English transcript; he argues that there is no

way to determine, on appeal, if Agent Cases's testimony was an

accurate reflection of the content of the tapes. We need not

resolve this issue because the Pre-Sentence Investigative Report

(PSR) is sufficient to support the district court's finding.

The PSR found the drug quantity attributable to Morales-Madera

to be in excess of 150 kilograms, and Morales-Madera did not

object. Because drug quantity need only be determined by a

preponderance of the evidence for sentencing purposes, a district

court may generally rely on the PSR in making this determination.

United States v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003). If a

defendant's objections to the PSR are unsupported, id., or the

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defendant makes no objections, the court is entitled to rely on the

PSR alone. Morales-Madera's sentence was not clearly erroneous.

2. Denial of Downward Adjustment for Minor Role

Morales-Madera argues that the district court erred in

failing to consider a two-level downward adjustment for a minor

role in the conspiracy. U.S.S.G. § 3B1.2. Morales-Madera did not

argue for this adjustment at sentencing and did not object to its

omission from the PSR. "[I]n [the] criminal sentencing context,

arguments not addressed to the trial court at the appropriate time

are deemed to be abandoned." United States v. Ortiz, 966 F.2d 707,

717 (1st Cir. 1992) (citing United States v. Dietz, 950 F.2d 50, 55

(1st Cir. 1991) (collecting cases)).

Even if Morales-Madera had preserved his objection, his

argument would fail. Review of the decision to deny a downward

adjustment for minor role is for clear error. United States v.

Rosario-Peralta, 199 F.3d 552, 571 (1st Cir. 1999). No such error

occurred here. The district court could reasonably have concluded

that Morales-Madera was not a minor participant. Agent Cases

testified that Morales-Madera was the right-hand man of Naranjo-

Rosa. This testimony is confirmed by the wiretaps, which show

Morales-Madera discussing the price of 20 kilograms of cocaine,

planning to collect a $30,000 debt for Gutierrez-Naranjo,

determining the price for 625 grams of heroin from the Dominican

Republic, and making travel arrangements to the Dominican Republic

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to purchase heroin. These activities could reasonably be viewed as

more than minor participation.

3. Credit for Time Served in Dominican Republic

Morales-Madera also argues that the court erred in

failing to consider a downward departure based on a three-year

sentence that he served in the Dominican Republic for drug

trafficking offenses from May 1, 1997 until November 29, 2000. A

district court's refusal to depart downward is generally not

reviewable on appeal, unless the refusal stemmed from a

misapprehension of its authority under the guidelines. United

States v. Rivera-Rodriguez, 318 F.3d 268, 275 (1st Cir. 2003).

Here, Morales-Madera argues that the district court failed to

recognize its authority to depart downward under U.S.S.G. § 5K2.0

to credit him for time served.

Morales-Madera did not request a downward departure on

this basis at sentencing, but only argued that his sentence should

be at the lower end of the guidelines range because of his time

served. "Defendant's failure to request a downward departure on

this ground in the district court forecloses our consideration of

the issue." United States v. Field, 39 F.3d 15, 21 (1st Cir.

1994).

Even if we were to review Morales-Madera's claim for

plain error, his argument would be unavailing. The parties dispute

whether the district court had the power to depart downward in this

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situation. Morales-Madera concedes that his sentence in the

Dominican Republic has already been discharged. Although a

different procedure exists for undischarged sentences,9 defendants

who seek credit for discharged sentences must ordinarily apply to

the Attorney General, through the Bureau of Prisons, under 18

U.S.C. § 3585(b). See United States v. Wilson, 503 U.S. 329, 335

(1992). Only after exhausting administrative review of this

determination may defendants seek judicial review. United States

v. Collazo-Aponte, 216 F.3d 163, 205-06 (1st Cir. 2000), vacated on

other grounds, 532 U.S. 1036 (2001). Morales-Madera argues that he

can circumvent this requirement by seeking a downward departure

from the district court at sentencing. He relies on Application

Note 7 to U.S.S.G. § 5G1.3, which discusses potential downward

departures for discharged sentences. The government argues

otherwise, citing cases from other circuits denying district courts

the authority to depart downward based on time served. See United

States v. Luna-Reynoso, 258 F.3d 111, 116-17 (2d Cir. 2001); United

States v. McHan, 101 F.3d 1027, 1040 (4th Cir. 1996). The

government also notes that Application Note 7 did not come into

effect until November 1, 2002, after Morales-Madera's sentencing on

January 15, 2002.

9
The Sentencing Guidelines require sentences to run
concurrently if the defendant faces an "undischarged term of
imprisonment" for another offense that is already fully taken into
account in sentencing for the instant offense. U.S.S.G. § 5G1.3.

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 We need not resolve this issue. Even assuming arguendo

that the district court had the power to depart downward on this

basis, Morales-Madera's substantial rights are not affected. He is

not prejudiced because he can apply to the Bureau of Prisons under

§ 3585(b) to obtain credit for his time served in the Dominican

Republic. Thus, no plain error occurred.

E. Purported Adoption of Co-Defendants' Arguments

Five individuals who were originally indicted with

Morales-Madera were convicted in a separate trial. Two of those

five defendants had their convictions reversed on appeal in Rivera-

Rosario, 300 F.3d at 21. Morales-Madera requests leave to adopt

the factual and legal arguments raised by those five defendants in

their appeal. We deny his request.

The English-language issues in this trial are not the

same as those in Rivera-Rosario and are disposed of in this

opinion. To the extent Morales-Madera purports to raise other

issues, his cursory attempt at adoption does not tell us what those

issues are. He has not met his burden of showing that he is in the

same legal and factual position as the defendants in Rivera-Rosario

with regard to those issues. Those arguments are therefore waived.

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

III.

Morales-Madera's conviction and sentence are affirmed.

So ordered.

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