United States Court of Appeals
For the First Circuit
No. 02-2505
02-2506
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE R. VÁZQUEZ GUADALUPE;
VICTOR J. PACHECO-DIAZ,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Selya, Lynch, and Lipez,
Circuit Judges.
J. Michael McGuinness, with whom The McGuiness Law Firm was on
brief, for appellant Pacheco-Diaz.
Ignacio Fernández de Lahongrais on brief for appellant Vázquez
Guadalupe.
German A. Rieckehoff, Assistant United States Attorney, with
whom Nelson Pérez-Sosa, Assistant United States Attorney, Senior
Appellate Attorney, and H.S. Garcia, United States Attorney, were
on brief, for appellee.
May 18, 2005
LYNCH, Circuit Judge. Defendants present arguments to
vacate criminal convictions where the prosecution introduced
Spanish language audio tapes containing evidence of the defendants'
criminal activity. The issues raised here concerning compliance
with the Court Reporter Act, 28 U.S.C. § 753(b), and the Jones Act,
48 U.S.C. § 864, have been resolved by our decision in United
States v. Morales-Madera, 352 F.3d 1 (1st Cir. 2003). We reaffirm
the principle of Morales-Madera that where English transcripts of
foreign language conversations were presented to the jury, and no
objection was raised as to the accuracy of transcription or
translation, the failure to put the transcripts into evidence may
be cured under Fed. R. App. P. 10(e). We add today the requirement
that the government must in these circumstances supplement the
record promptly upon the filing of any notice of appeal, so that
appellate counsel for the defendant has adequate opportunity to
review the supplemented record before defendant's brief is due.
Concluding that the challenges going both to the verdicts
and to the sentences are without merit, we affirm the convictions
and sentences.
I.
The prosecutions of these two defendant police officers
are part of a series of cases resulting from an undercover
investigation known as "Honor Perdido" into corruption among
officers of the Police of Puerto Rico. For a fuller description of
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the Honor Perdido investigation, see United States v. Flecha-
Maldonado, 373 F.3d 170, 172 (1st Cir. 2004). Defendant José
Vázquez Guadalupe was a police officer assigned to the Criminal
Investigative Center of the Police of Puerto Rico ("PPR", a single
unified police department). Defendant Victor Pacheco-Diaz was a
PPR officer assigned as a task force agent to work with the Federal
Bureau of Investigation ("FBI") on a federal anti-drug task force
in Fajardo, Puerto Rico. Both officers were ensnared in an FBI
sting operation: they agreed to and did participate in what they
understood to be the transport of cocaine in Puerto Rico. The two
defendant officers met with an undercover agent/"dealer" named
Arturo Ortiz Colón and agreed to protect and transport five
kilograms of cocaine in return for payments of money.1
On June 15, 2000, the defendants provided protection for
the transport of the cocaine. The defendants took advantage of
their positions as officers. They used a car assigned to the
federal anti-drug task force. Both defendants were armed with
weapons, their police weapons, so that they could protect the
drugs. They talked about what would happen if they were stopped
and agreed that they would identify themselves as police officers
and so be able to avoid any problems. Indeed, Pacheco-Diaz offered
1
Ortiz was a police officer who had previously been caught
committing a drug crime. He then agreed to work with the FBI and
thus acted both as an undercover agent and as a cooperating
witness.
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not only to provide protection for the transport of drugs but to
deliver the cocaine himself. At the delivery point they used
police counter-surveillance techniques to check for law enforcement
vehicles. They successfully accomplished the delivery of the
drugs. On June 20 Ortiz, the undercover agent, met with Vázquez
and paid him $3,000 for the transport of the drugs. That same day
Ortiz met with Pacheco-Diaz and paid him $3,000. Pacheco-Diaz
indicated he was available for future escorts.
Pacheco-Diaz became suspicious and himself investigated
the purported dealer Ortiz, found some information suggesting that
Ortiz was an undercover agent, and asked to meet with him.
Pacheco-Diaz then met agent Ortiz, asked why the officer "want[ed]
to screw [him]," and then threatened to kill him. Shortly
thereafter, both defendants were arrested.
After a jury trial from April 11 through April 19, 2002,
the two defendant officers were convicted on all three counts: one
count of conspiracy to distribute narcotics (Count I) and one count
of attempt to distribute narcotics (Count II), in violation of 21
U.S.C. § 846, and a third count of use of a firearm during the
commission of a drug trafficking crime (Count III), in violation of
18 U.S.C. § 924.
Defendant Vázquez was sentenced to 248 months of
imprisonment, consisting of 188 months for each of the drug
trafficking counts to be served concurrently, and 60 months for the
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third count of use of a firearm during commission of a drug
trafficking crime, to be served consecutively to the time for
Counts I and II. He was also sentenced to a supervised release
term of eight years for Counts I and II and three years for Count
III, to be served concurrently. Defendant Pacheco-Diaz received
the same prison sentence as Vázquez: 188 months concurrent for
Counts I and II, and 60 months consecutive for Count III. He also
received eight years of supervised release for Counts I and II and
three years for Court III, to be served concurrently.
Both appealed, raising attacks on their convictions and
their sentences.
II.
A. Arguments of Defendants
1. Pacheco-Diaz
Pacheco-Diaz argues that there were numerous trial errors
which should result in his conviction being vacated. His primary
argument is that the trial was flawed because the court did not
instruct the translator to translate Spanish language conversations
on audio tapes introduced into evidence, and the court reporter to
transcribe them simultaneously with the playing of the tapes. He
describes this as a violation of the Court Reporter Act and a
violation of the rule the Supreme Court set down in Hardy v. United
States, 375 U.S. 277 (1964). Pacheco-Diaz also alleges a series of
evidentiary errors: in permitting a testifying agent to present an
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overview of the case, in admitting bad act evidence and hearsay, in
denying his request to present a video tape, and in denying a
motion seeking production of files. He argues that the overall
effect of the errors constitutes prejudicial error.
Pacheco-Diaz further argues that the trial court erred in
failing to grant his Rule 29 motion for judgment of acquittal. He
argues that the verdict could not be based on the testimony of an
admittedly corrupt cooperating witness who was paid financial
compensation, and that the evidence was insufficient to support a
conviction, particularly on Count III, the charge that he used a
firearm in the commission of a drug trafficking crime.
As to sentencing, he argues that the sentence should be
vacated because appellant was subject to sentencing entrapment and
manipulation.2
2. Vázquez
Defendant Vázquez makes two arguments. He objects to
presenting the audio tapes, which were solely in Spanish, without
ascertaining if the jurors were fluent enough in Spanish to
understand the tapes. He secondly argues that the Guidelines
2
He also appears to argue that it is the obligation of the
court to review the record for further error not articulated by the
defendant. This is a misunderstanding of Anders v. California, 386
U.S. 738 (1967). Anders holds that the court must examine all the
proceedings to decide whether an appeal is wholly frivolous, after
appointed defense counsel has so advised the court and requested to
withdraw. Id. at 744. It says nothing about an obligation of the
court independently to review the record for errors not raised by
the defendant.
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maximum supervised release term for his offense was five years, and
therefore the court erred in sentencing the defendant to eight
years of supervised release because defendant did not receive prior
notice before receiving a sentencing enhancement. See United
States v. Cortes-Claudio, 312 F.3d 17, 23 (1st Cir. 2002). The
government agrees with the second contention and so without further
discussion we will remand that portion of Vázquez's sentence
pertaining solely to the eight years of supervised release for
correction of that error. We note that Pacheco-Diaz similarly
received eight years of supervised release term, although it is not
apparent from the briefing or record whether he received adequate
notice. In light of the government's concession in the companion
case, we will also remand the supervised release portion of
Pacheco-Diaz's sentence for the limited purpose of determining
whether he was similarly sentenced in error and, if so, for
correction of that error.
B. Merits of Defendants' Arguments
To set the context, we describe the use of audio and
video tape evidence in this case. Much of the government's case
was proven through audio and video tapes of the defendants'
activities. Accordingly, before trial, the government prepared
Spanish transcripts of what was said in those tapes. These Spanish
transcripts were also translated into English. Before trial,
counsel for the defendants were given copies of both the Spanish
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version and the English translations of what was said in the tapes.
The defense counsel also had access to the tapes themselves,
enabling them to check for both types of accuracy. At trial,
Pacheco-Diaz's counsel objected to the reliability of one tape and
its transcription, and the district judge excluded that tape from
evidence. Defense counsel raised no objection at any time to the
accuracy of the Spanish transcription of the conversations nor to
the accuracy of the English translations as to any other tapes.
The facts distinguish our decision in United States v.
Rivera-Rosario, 300 F.3d 1 (1st Cir. 2002). There, the government
failed to follow these procedures; more than 180 tapes were played
for which there was never any English translation in the district
court proceedings; the government failed to comply with Fed. R.
App. P. 10(e) and then attempted, for the first time on appeal
before this court, to provide English translation never available
at the district court; furthermore, there were serious factual
disputes as to the translation's accuracy. Id. at 5-9.
At trial in this case, the audio and video tapes were
played for the jury. The jury also was given copies of the Spanish
and English language transcripts without objection from defense
counsel. As was the custom at the time, and before our decision in
Morales-Madera, the trial court did not enter the transcripts into
evidence; however, the government requested that the court mark the
exhibits and offered them as evidence. The defense made no
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objection to this procedure at trial and no question was raised as
to the accuracy of the transcription or of the translation.
Because the transcripts had not been entered into
evidence, the government, on appeal, and in accordance with
Morales-Madera, under Fed. R. App. P. 10(e) filed the transcripts
as exhibits with this court on February 22, 2005 to complete the
record.
1. Jones Act and Court Reporter Act
a. Pacheco-Diaz
Pacheco-Diaz's appellate counsel, who was not trial
counsel, bases his appeal primarily on the argument that this
procedure was in violation of the Court Reporter Act, 28 U.S.C.
§ 753(b). This contention is entirely foreclosed by this court's
decision in Morales-Madera, 352 F.3d at 6. There we explicitly
held that the Court Reporter Act does not require a court reporter
to transcribe (nor a translator to translate) conversations on
wiretap tapes which are played to the jury. Id. This same
reasoning applies to audio tapes played to the jury. Such
transcription is not required because "[t]he conversations on the
. . . tapes are not testimony from witnesses before the court that
must be recorded in a verbatim transcript." Id. The Jones Act,
48 U.S.C. § 864, is satisfied where accurate transcripts of the
taped Spanish conversations were provided to counsel and to the
jury. Id. at 7. We instructed that the government had an
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obligation to provide copies of English translations of the
transcripts of Spanish recordings to defense counsel adequately in
advance of trial so that any disputes concerning the reliability of
the transcription in the original language and/or of the English
translation might be brought to the attention of the district court
or resolved by agreement. Id. at 8. There is no question here
that the government met those obligations.
Morales-Madera also held that the English language
transcripts of the Spanish language wiretaps used by the jury as
aids during the playing of the recordings should have been
submitted into evidence, in order to comply with the Jones Act.
Id. at 9.
Morales-Madera reasoned that even if, hypothetically, not
transcribing the recordings amounted to a Court Reporter Act
violation, any error was harmless when the recording itself was
entered into evidence. Id. at 7. We held that the best evidence
rule requires that the recordings played in open court be entered
into evidence. Id. at 9. However, this did not mean that reliable
English translations of the tapes must be excluded from evidence;
they should be introduced. Id.
Morales-Madera also held that where counsel did not
object at trial to the failure to introduce into evidence the
English translations of Spanish audio tapes, only plain error
review was available. Id. at 10. We also held that any error
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could be cured by the government using the procedure of
supplementing the record with English translations under Fed. R.
App. P. 10(e), so long as there are no issues regarding the
accuracy of the translation and the English transcripts were
actually available during the proceedings below. Id. at 11.
On appeal, Pacheco-Diaz argues that this court's decision
in Morales-Madera was wrongly decided in light of the Supreme
Court's decision in Hardy, 375 U.S. 277. Nothing in Hardy is
inconsistent with Morales-Madera; to the contrary Morales-Madera is
in complete compliance with Hardy. Hardy held that new court-
appointed counsel who represents an indigent defendant on appeal
(but not at trial) may obtain at public expense the entire
transcript in order to determine which issues should be raised on
appeal. Id. at 279-80. Hardy does not involve the Court Reporter
Act at all and involves no issue of whether the recordings played
at trial were indeed transcribed.
Indeed, the underlying theme of Hardy is the necessity to
make available to new appellate counsel the transcript needed so
that counsel could review the record to faithfully discharge the
obligation of representing his or her client. Consistent with
Hardy, Morales-Madera requires that the written transcription of a
tape played to the jury be submitted into evidence to provide
sufficient basis for appellate review. Morales-Madera, 352 F.3d at
9-10. In those instances where that was not done, then the
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government must supplement the record on appeal with the undisputed
transcript of any tapes that were played for the jury. Id. at 11.
Morales-Madera fulfills, not defeats, the reasoning of Hardy.
Pacheco-Diaz makes a separate argument, based on a
misreading of our holding in Rivera-Rosario, 300 F.3d 1. In
arguing for an automatic-reversal rule, he reads Rivera-Rosario's
language suggesting that the court has an obligation to secure
compliance with the Court Reporter Act to mean that the court
itself must order transcription by a court reporter of what is said
in a video or audio tape. Rivera-Rosario, as noted earlier, is not
applicable. As we have said, here there was no violation of the
Court Reporter Act.
And even if there had been error, violation of the Court
Reporter Act does not require automatic reversal. United States v.
Mescual-Cruz, 387 F.3d 1, 12 (1st Cir. 2004) ("Nothing prescribes
automatic reversal of a defendant's conviction for non-compliance
with the Court Reporter Act." (quotation and alteration omitted)).
Rather, to obtain reversal and a new trial, the defendant must
demonstrate specific prejudice to his ability to perfect an appeal.
United States v. Smith, 292 F.3d 90, 97 (1st Cir. 2002). The same
is true for the Jones Act. See Mescual-Cruz 387 F.3d at 11;
Morales-Madera, 352 F.3d at 10.
Finally, at oral argument the court raised its own
concern about new appellate defense counsel's access to the
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supplemental record materials under Rule 10(e) before preparing his
brief on appeal. It may be this was what was meant by counsel's
reference to Hardy.3 The government was at fault for not
supplementing the record on appeal with the transcripts well before
the appellant's brief was due. The transcript was added to the
record on appeal after appellant's brief was filed. The office of
the United States Attorney in Puerto Rico has assured us that it
will see that this problem does not recur and that in cases in
which Spanish and English language transcripts given to counsel and
the jury were not put into evidence at trial, the government will
supplement the appellate record under Rule 10(e) as soon as
practicable after the notice of appeal is filed.
As a result of our concerns, this court granted an
extension of time to appellate defense counsel to review those
transcripts and file supplemental briefing. He has now done so.
In his supplemental brief, appellant renews the arguments above,
and in addition argues that the transcripts were provided to the
jury erroneously because they had not been properly authenticated
and the trial court failed to take proper steps to address the
reliability of the Spanish language transcripts and their
translation. Bu these claims were not raised at trial and even now
3
It is true counsel could have gotten the transcripts from
trial counsel or obtained copies from the government.
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appellate counsel offers no reason to believe the transcripts,
certified by the district court, are inadequate or inaccurate.
Further, he argues that at oral argument, the government
admitted that no transcripts were made of the video tapes played,
and thus the Pacheco-Diaz's complaint as to the deficiency of the
appellate record has not been fully cured by the government
providing transcripts of the audio tapes played at trial. He does
not make any argument that the evidence in the Rule 10(e)
supplement undermines his client's conviction.
As to the contention that no transcripts were made of the
video tapes, Pacheco-Diaz misunderstands the government's
explanation as to how the tapes were played at trial. The
government explained that the video recordings did not themselves
record sound; separate audio recordings occurred and were played
along with the corresponding video. The government made
transcripts of all audio tapes played at trial.
b. Vázquez
Vázquez makes a related argument that there was error in
playing the Spanish language audio tapes without first ascertaining
that the jurors were fluent in Spanish. He argues this is a
violation of the Jones Act and the Court Reporter Act. To the
contrary, there is no violation of the Court Reporter Act. The
argument made is itself contrary to the Jones Act, which
establishes English as the language of the federal courts in Puerto
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Rico. 48 U.S.C. § 864 ("All pleadings and proceedings in the
United States District Court for the District of Puerto Rico shall
be conducted in the English language."); Morales-Madera, 352 F.3d
at 7.
The Jones Act thus requires that jurors be competent in
English, not Spanish. Evidence in another language which is
presented must be translated into English. The English language
translations of the transcripts of the audio tapes were provided to
the jury, so Vázquez's claim fails.
2. Evidentiary Errors
We start with Pacheco-Diaz's argument, long since
rejected by this court, that the Due Process Clause and Sixth
Amendment are violated when the government "turns" a criminal
defendant into a cooperating witness, pays the witness to engage in
a sting operation and then uses the testimony of the witness.
United States v. Innamorati, 996 F.2d 456, 481-82 (1st Cir. 1993).
Ortiz's testimony was admissible; it is left for the jury to
evaluate his credibility. United States v. Reyes, 352 F.3d 511,
518 (1st Cir. 2003). In the end, the argument boils down to an
assertion that the government cannot conduct sting operations using
individuals who expect to receive leniency or financial
compensation in exchange for their cooperation. We reject that
argument. We note, moreover, that this case did not turn on
Ortiz's testimony. At the heart of the government's case were the
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audio and video tapes, in which the defendants incriminated
themselves.
Pacheco-Diaz makes miscellaneous other arguments in
shorthand fashion: the court erred in denying his motion to produce
files and to introduce a video tape, as well as in introducing
prior bad act evidence and hearsay. These arguments are desultory
and are waived. United States v. Bongiorno, 106 F.3d 1027, 1034
(1st Cir. 1997) ("We have steadfastly deemed waived issues raised
on appeal in a perfunctory manner, not accompanied by developed
argumentation."). Moreover, given the overwhelming nature of the
evidence against the defendant, even if any of the claimed errors
had occurred, they were clearly harmless. Tse v. United States,
290 F.3d 462, 465 (1st Cir. 2002). The argument that the
government improperly used agent Pelaez as an overview witness,
United States v. Casas, 356 F.3d 104, 118-20 (1st Cir. 2004), was
not made at trial, and is subject to plain error review. The
argument is not supported by adequate record citation, and given
the overwhelming evidence against the defendant, there is no plain
error. Further, the denial of the defendant's Rule 29 motion was
entirely correct: the evidence of guilt as to all three charges was
overwhelming.4
4
The defendant attempts to claim that the 18 U.S.C. § 924(c)
charge is unsupported by the evidence because the gun he possessed
was an inherent part of his employment as a police officer. This
argument is plainly wrong; defendant used his status as a police
officer, which includes the fact that he carries a gun, in order to
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3. Attack on Sentence
Finally, Pacheco-Diaz attacks his sentence, arguing he
was subjected to sentencing entrapment and manipulation, because
the five kilograms of cocaine he purportedly transported was a
fictional amount of cocaine designated by the government. He cites
United States v. Connell, 960 F.2d 191 (1st Cir. 1992), which
provides him no support. In dicta in Connell, we stated that there
is a potential for sentencing entrapment or manipulation where
"exploitative manipulation of sentencing factors by government
agents might overbear the will of a person predisposed only to
commit a lesser crime." Id. at 196. However, we further stated
that "sting operations are designed to tempt the criminally
inclined, and a well-constructed sting is often sculpted to test
the limit of the target's criminal inclinations." Id. There is
simply no evidence that Pacheco-Diaz was inclined to commit a crime
of trafficking less than five kilograms, but some misconduct by the
government overbore his will and forced him to transport more than
five kilograms. On the contrary, the evidence was overwhelming, in
the form of uncontested testimony by the government's witness and
protect the drug transaction in which he engaged. This clearly
provides an adequate nexus between his possession of the gun and
the drug trafficking crime sufficient to support the charge. See
United States v, Castro-Lara, 970 F.2d 976, 983 (1st Cir. 1992)
("If a gun is possessed for some other, perhaps legitimate,
purpose, an intent to have it available for possible use in
connection with, say, a drug deal, or as a device to lend courage
during such a transaction, will suffice to invoke the statute.").
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audio and video tape evidence, that Pacheco-Diaz voluntarily agreed
to protect the transport of five kilograms of cocaine.
We affirm the convictions and sentences of both Pacheco-
Diaz and Vázquez, except for that portion of the sentences
pertaining to supervised release, and on remand direct the district
court to correct the terms of supervised release as to Vázquez, and
as to Pacheco-Diaz only if he did not receive adequate notice, in
a manner consistent with this opinion.
So ordered.
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