Filed: May 20, 1992
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 91-2264 United States of America, Plaintiff-Appellee VERSUS Rafael Valencia and Luis Arturo Penaflor, Defendants-Appellants Appeal from the United States District Court For the Southern District of Texas (March 25, 1992) Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, District Judge.* WIENER, Circuit Judge: Defendants-Appellants Rafael Valencia and Luis Arturo Penaflor appeal their convictions on one count of conspiracy to possess
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 91-2264 United States of America, Plaintiff-Appellee VERSUS Rafael Valencia and Luis Arturo Penaflor, Defendants-Appellants Appeal from the United States District Court For the Southern District of Texas (March 25, 1992) Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, District Judge.* WIENER, Circuit Judge: Defendants-Appellants Rafael Valencia and Luis Arturo Penaflor appeal their convictions on one count of conspiracy to possess w..
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 91-2264
United States of America,
Plaintiff-Appellee
VERSUS
Rafael Valencia and
Luis Arturo Penaflor,
Defendants-Appellants
Appeal from the United States District Court
For the Southern District of Texas
(March 25, 1992)
Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, District
Judge.*
WIENER, Circuit Judge:
Defendants-Appellants Rafael Valencia and Luis Arturo Penaflor
appeal their convictions on one count of conspiracy to possess with
intent to distribute in excess of one kilogram of heroin and on one
count possession with intent to distribute in excess of 100 grams
of heroin. Finding no reversible error, we affirm.
I.
*
District Judge for the Western District of Louisiana,
sitting by designation.
FACTS
In 1989, the Drug Enforcement Agency (DEA) began an
investigation of Javier Carrasco after receiving a tip from a
government informant, Gonzalez Marquez (also known as Rudy Lopez).
Marquez had participated in several telephone conversations and had
met with Carrasco in Arizona to negotiate the sale of 16 kilograms
of heroin. Valencia was present at the meeting between Carrasco
and Marquez. Several months later, Carrasco telephoned Marquez
from Mexico to advise him that a two kilo sample of the heroin was
ready for transportation into the Tucson area. Carrasco gave
Marquez a telephone number to call in Tucson to arrange for the
delivery. When Marquez made the call, Penaflor answered the phone
and acknowledged Marquez's identity. Marquez then spoke with
Valencia and asked Valencia if he could read a map. In response,
Valencia said that Penaflor could read and speak English. Marquez
then spoke with Penaflor, who informed Marquez that "they"1 would
arrive in Houston on a certain date, and explained that, once they
arrived in Houston, Carrasco's sister-in-law would call Marquez to
give him the hotel room and phone number where Penaflor could be
reached.
On the appointed date, Carrasco's sister-in-law was contacted
and she provided the expected information. When Marquez called the
hotel room, Valencia answered. They arranged to meet at the hotel
1
Marquez's testimony as to who "they" are is unclear.
Apparently, he expected Carrasco to come to Houston to meet with
him because later, at the meeting, he asked Valencia and Penaflor
why Carrasco did not make the trip. Valencia then explained that
Carrasco had sent Penaflor in his place.
2
room. Shortly thereafter, Marquez went to the hotel room, and
Valencia and Penaflor were present.
Valencia left the room and returned about ten minutes later
with a speaker box he had removed from his truck.2 Penaflor hit
the speaker to open it, and Valencia removed a plastic bag and
said, "Here it is and it's good." Penaflor added, "It smells
good."
Valencia broke off a piece for Marquez to examine.3 Marquez
explained that he would take the sample, test it, and return later
with the actual purchasers. According to Marquez, the Defendants
expressed concern about remaining in a strange place with the
heroin, indicating that they did not want to keep the drugs in the
room.
Later that day, in a tape recorded telephone conversation in
Spanish, Marquez complained to Carrasco that he did not get the two
kilos as promised, and that its purity was only 13 percent.
Marquez said he could give Carrasco only $8,000. Carrasco promised
the additional kilograms in eight days, and instructed Marquez to
give the money to Valencia because Valencia was in charge.
Two DEA agents posing as buyers accompanied Marquez to the
same hotel. While one of the agents remained in the car, Marquez
and the other agent met with Valencia and Penaflor in the same room
as before. Because the agent spoke no Spanish and Valencia spoke
2
Marquez recognized the truck as the same one Carrasco had
driven to their earlier meeting in Arizona.
3
This piece was later determined in a lab test to be 4.06
grams of heroin.
3
no English, Penaflor acted as interpreter. The agent inquired as
to the whereabouts of the heroin, and Penaflor informed him that
Valencia would get it. Valencia left the room and returned shortly
with a brown bag under his shirt.
The heroin was removed from the bag, and the agent began
testing and weighing it. The agent protested that the heroin was
not very good, but both Defendants responded that it was "excellent
stuff." The Defendants expressed concern when they were informed
that they would only be receiving $8,000 for what amounted to 239.2
grams of heroin. Attempts were made to reach Carrasco by
telephone, and someone at his number assured Valencia to his
satisfaction that $8,000 was the agreed price.
The Defendants also informed the agent that they would
personally be delivering the remaining kilograms of heroin on
behalf of Carrasco in several weeks. Penaflor, still concerned
about the price shortage, argued with Valencia. As Marquez and the
agent were leaving, some discussion took place about the additional
kilos, and Penaflor stated, "Well, on that one I'm going to make
more money."
Even though Marquez subsequently exchanged numerous telephone
conversations with both Valencia and Penaflor over a period of
several months, the DEA agents finally concluded that the agreed 16
kilo transaction was never going to take place. One of the DEA
agents testified at trial, over the Defendants' hearsay objection,
that the agents decided to arrest the Defendants after hearing from
an informant that Carrasco was on the run because of an argument
4
with some narcotics traffickers. The agent admitted that he did
not know whether the report was accurate, but that the DEA had
acted on the information.
II.
PROCEEDINGS
Valencia, Penaflor and Carrasco were indicted for conspiring
to possess with intent to distribute in excess of one kilogram of
heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and
846. Valencia and Penaflor were also indicted for possession with
intent to distribute in excess of one hundred grams of heroin, in
violation of §§ 841(a)(1) and 841(b)(1)(B). Valencia and Penaflor
were tried together by a jury, and were convicted on both counts.
Each was sentenced to 188 months of imprisonment on each count, to
run concurrently, plus five years of supervised release on each
count, to run concurrently, and deportation upon release from
confinement.
Both Defendants timely appealed their convictions.
III.
ANALYSIS
A. The Taped Conversation
At trial, the government sought to introduce into evidence and
play for the jury an authenticated tape recording of the telephone
conversation between Marquez and Carrasco that took place after
Marquez first met with Valencia and Penaflor in the Houston hotel
room. The conversation was in Spanish, but an English transcript
5
had been prepared, the accuracy of which was originally questioned
by the Defendants. After conference and a review by the official
court translators, the parties stipulated to the accuracy of a
revised version of the English transcript. The Defendants'
attorneys joined in the government's request to play the tape,
contending that the jury should hear the participants' tone of
voice. The district court disagreed. After polling the jury and
learning that one spoke Spanish and one understood "street"
Spanish, the court concluded that the jury would be more confused
than assisted, and that a limiting instruction requiring the jury
to credit the official transcribed version over what they might
think they heard on the tape would be fruitless. As an
alternative, the court allowed copies of the transcript to be given
to the jury members, and the transcript to be read into the record
in English with Marquez reading his part of the conversation and
the prosecutor reading Carrasco's part.
On appeal, the Defendants urge that the district court erred
in refusing to allow the tape to be played to the jury. They
contend here, as they did at trial, that the jury could have
benefitted from hearing the oral demeanor of the participants, the
hesitation in the voices, pauses, laughter, and other non-verbal
traits that cannot adequately be transferred to paper. The
Defendants contend that Carrasco's oral demeanor demonstrates his
hesitance or reluctance.
6
This is an issue of first impression in this circuit. In
United States v. Onori,4 we considered the appropriateness of
allowing a transcript of a taped conversation to be admitted as
substantive evidence. We have also considered cases concerning the
accuracy of the translation of a foreign language tape.5 We have
not, however, had to decide the propriety of admitting the English
translation of a foreign language tape as evidence while excluding
the tape itself, or to consider the relevance of a foreign language
tape under such circumstances. After careful consideration,
however, we conclude that here the district court did not err in
refusing to play the tape for the jury.
The issue in this case is not whether the transcript can be
admitted into evidence without the tape. Because of the unusual
nature of this case, however, that issue is a predicate to our
analysis of the Defendants' argument that the tape should have been
played as it would have been helpful to the jury. There is no
question that a transcript of a taped conversation is beneficial to
a jury, and is generally used to assist the jury as it listens to
the tape in court.6 In Cruz, the Eleventh Circuit explained that
Onori makes clear that transcripts may be used as substantive
evidence
4
535 F.2d 938 (5th Cir. 1976); see also United States v.
Sutherland,
656 F.2d 1181 (5th Cir. 1981); United States v. Cruz,
765 F.2d 1020 (11th Cir. 1985).
5
See, e.g., United States v. Llinas, 603 F.2d 506 (5th Cir.
1979), cert. denied,
444 U.S. 1079 (1980);
Onori, 535 F.2d at
948-49.
6
Onori, 535 F.2d at 947.
7
to aid the jury in determining the real issue presented,
the content and the meaning of the tape recordings.
It is therefore incorrect to think of the trans
cript
s as
simpl
y an
"aid
"--as
bette
r
light
i n g
fixtu
r e s
i n
t h e
court
room
would
be an
"aid"
t o
t h e
jury'
s
visio
n of
witne
sses-
-and
n o t
a s
evide
n c e
o f
a n y
kind.
They
a r e
evide
n c e
and,
like
other
evide
nce,
m a y
b e
admit
t e d
for a
8
limit
e d
purpo
s e
only.
7
Cruz and Onori instruct that a transcript is admissible because it
is helpful in understanding the tape recording from which it was
derived.8 We find nothing in Cruz or Onori, however, that would
prohibit a court from excluding the tape itself from being
introduced into evidence while allowing the transcript. In fact,
we are aware of at least two cases in which English translation
transcripts of foreign language tapes were introduced while the
tapes themselves were not.9 In neither of those cases, however,
did the parties object to the introduction of the transcripts
without the tapes.10
Because we have concluded that an English translation
transcript can be introduced into evidence without admitting and
playing the underlying foreign language tape for the jury, we must
now determine whether here the district court abused its discretion
7
Cruz, 765 F.2d at 1023 (quoting
Onori, 535 F.2d at 947).
8
The Cruz court did give some credence to the Defendants'
arguments: when listening to a foreign language recording, the
jury can "detect changes in voice modulation and note any
hesitancies or other characteristics which might give meaning to
the tape recordings." Cruz, 765 F.2d at 1024.
9
See United States v. Rizk, 842 F.2d 111 (5th Cir.), cert.
denied
488 U.S. 832 (1988); United States v. Rengifo,
789 F.2d
975 (1st Cir. 1986).
10
In Rizk, the defendant never requested that the tape be
played at trial. For this reason, we rejected his assertion that
he was prejudiced because the jury did not listen to the tapes.
Rizk, 842 F.2d at 112.
9
when it refused to allow the tape to be played for the jury
following requests to do so from both the government and the
Defendants.
Whether to allow the tape to be played for the jury or
introduced into evidence, like most evidentiary matters, is soundly
within the discretion of the trial court.11 It bears repeating
that, to be relevant in the determination of a case, the evidence
must aid the jury in its decision making process.12 Even though
evidence is relevant, however, it may be excluded if the trial
court finds that its probative value is substantially outweighed by
danger of unfair prejudice or confusion, or if such evidence would
be misleading to the jury.13
Notwithstanding the Defendants' contention that the jury
should listen to the tape to examine the participants' oral
demeanor, the district court concluded that the tape would not aid
the jury.14 The court emphasized that the Defendants and the
government had stipulated to the accuracy of the transcript and
that, at the request of the Defendants, during voir dire of the
jury panel the court instructed the potential jurors who understood
Spanish to disregard their understanding of Spanish in favor of the
11
Addison v. United States, 317 F.2d 808, 815 (5th Cir.
1963), cert. denied,
376 U.S. 905 (1964).
12
Fed.R.Evid. 401.
13
Fed.R.Evid. 403.
14
The district court commented, "Well, if it was in Chinese,
I don't think I'd get the flavor from it; and I don't think this
jury will get any more flavor than they can from the transcript."
10
official English translation presented to them during the course of
the trial. Under those circumstances, the court concluded that the
jurors, presented with a Spanish language tape and with an
instruction to disregard its words in favor of an English
translation, would be unaided by the tape.
When both a tape and a transcript are admitted, or a
transcript is used by the jury as an aid when listening to the
tape, the jury is generally given a limiting instruction that if it
encounters a discrepancy between the tape and the transcript, the
tape controls.15 Of course, such a limiting instruction is only
useful when the jury can understand the tape itself.16 And, in this
case, the limiting instruction would have been the obverse: that
when the Spanish speaking jurors encountered a discrepancy, the
transcript, not the tape, controls.
Moreover, the district court also expressed concern that the
tape could result in the jury being misled or confused because two
of the jurors could speak Spanish. They might be tempted, reasoned
15
United States v. Larson, 722 F.2d 139, 145 (5th Cir.
1983), cert. denied,
466 U.S. 907 (1984).
16
The court in In re Audibility of Certain Recorded
Conversations (United States v. Gerena), 691 F. Supp. 588, 592
(D.C. Conn. 1988), in commenting on the futility of such limiting
instructions, stated, "Where the tapes are in a language other
than English, however, such instructions have an air of the
unreal, not to say the surreal. Transcripts in a language other
than English will almost invariably be useless to the jury; the
jury will need translations. And a jury cannot very well follow
the tapes where they conflict with translations if the jury does
not understand the language of the tapes." See also, United
States v. Camargo,
908 F.2d 179, 193 (7th Cir. 1990). Of course,
in the instant case, most of the difficulty is derived from the
fact that two of the jurors could understand Spanish.
11
the court, to provide their own gloss on the translation,
irrespective of the court's earlier admonishment during voir dire
or any other limiting instruction the court might provide. The
court concluded that excluding the tape entirely should alleviate
the concern that the Defendants had exhibited when they requested
the voir dire instruction initially. We are not convinced, under
the facts of this case, that the tape itself would not have aided
the jury in its deliberations. Rather, we agree with the court in
Gerena, which observed that
[i]n most cases little or no purpose would be served by
playing to a jury in a United States courtroom a tape of a
conversation in a language other than English. It is
arguable, however, that the particular circumstances of a case
would make it material and relevant to play such a tape to a
jury that does not understand the substance of the
conversation to show the mood or tone of the speakers, or the
general context or ambiance of their conversation.17
Regardless of our disagreement on that point, however, we do
not find that the district court abused its discretion. The
Defendants have asserted that by listening to the tape the jurors
would be able to infer from the "oral demeanor" that Carrasco was
reluctant or hesitant. The transcribed translation, as stipulated
to by the parties, indicates no reluctance or hesitance. Even
though we understand the Defendants' argument that the "entire"
conversation was not represented by the transcript, we note that
the tape was authenticated by Marquez, who was one of the
participants, and that he and the government's attorney read the
transcript into the record. The tape was not admitted into
17
691 F. Supp. at 607 n.9.
12
evidence, even on a proffer, so it does not form a part of the
record on appeal. Moreover, the Defendants have failed to direct
our attention to any point in the transcript at which we might find
such evidence of oral demeanor on the tape were it available to us.
Furthermore, in his testimony on direct examination, Marquez
clarified many terms and parts of the conversation. The
Defendants' attorneys cross-examined Marquez on the taped
conversation, and also called on Marquez to clarify idioms and
references in the conversation, but never once did either inquire
as to Carrasco's "oral demeanor" or the tone of the conversation,
even though such testimony would have been well within Marquez's
purview.18
The district court also expressed concern that whatever
relevance the tape may have had was substantially outweighed by the
danger that it would confuse or mislead the jury. The Defendants
requested that the court admit the tape and give the jury a
limiting instruction, similar in content to the one given the jury
venire, that the jurors should disregard their knowledge of
Spanish, to the extent they had any, in favor of the transcript.
The court, however, voiced doubts as to the efficacy of such an
instruction.
Just as we did not necessarily agree with the district court's
conclusion that the tape would not be helpful to the jury, we do
not necessarily agree that playing the tape would have confused or
18
See United States v. Aiello, 864 F.2d 257 (2d Cir. 1988);
Cf. United States v. Allibhai,
939 F.2d 244 (5th Cir. 1991),
cert. denied,
117 L. Ed. 2d 133 (1992).
13
misled the jury. In fact, we note with more than a passing
interest that one witness in this case spoke no English, yet she
was allowed to testify before the jury in Spanish while her
testimony was simultaneously translated into English by an official
court translator. Frankly, we fail to discern the difference
between the playing of the foreign language tape to the jury and
the testimony of this foreign language witness. Both instances
appear to present the same potential to confuse or mislead the
jury--that the two Spanish speaking jurors may confuse the two
versions or fail to accept the English version as "official"; and
that those two jurors may unduly influence their fellow jurors who
do not speak Spanish.
But despite this apparent contradiction, we do not find that
the district court abused its discretion in refusing to allow the
tape to be played. We have long noted the particular discretion
that a district court is allowed in determining just which
evidentiary matters have the real potential of confusing the jury.19
The court may reasonably have concluded that the probative value of
the witness's testimony far outweighed any possibility that the
jury would be confused or misled by the fact that her testimony was
given in Spanish, while just as reasonably reaching the opposite
conclusion with respect to the tape.20
19
United States v. Edelman, 873 F.2d 791, 795 (5th Cir.
1989).
20
There is no record of any objection at trial to the
testimony of this witness in Spanish. The relevance of the
witness's testimony is not before us. We note only that the
situations are analogous and seem to present the same dangers.
14
Although one could plausibly argue that the better, more
consistent approach would have been to have the jury listen to the
tape, just as the jury listened to the Spanish speaking witness, we
cannot say that under the circumstances of this case the district
court abused its discretion by refusing to play the tape for the
jury.
B. The Jury Instructions
In one of two counts to the indictment, the Defendants were
charged with possession with intent to distribute in excess of 100
grams of heroin, but in the other count, they were charged with
conspiring to possess with intent to distribute in excess of one
kilogram of heroin. The DEA, however, only recovered 239 grams of
heroin in their meeting with Valencia and Penaflor. The Defendants
requested, and the court agreed, to include a jury instruction on
the "lesser included offense" of conspiracy to possess with intent
to distribute in excess of 100 grams of heroin. After closing
arguments, however, the court omitted any reference to a 100-gram
conspiracy. Both Defendants objected to the court's failure to
give the instruction. The Defendants now complain that they were
deprived of their constitutional rights to a fair trial and
effective assistance of counsel when the district court failed to
give the requested jury instruction. Specifically, they insist
that the court's decision not to give the 100-gram instruction,
without prior notice of such change, was a violation of Rule 30 of
the Federal Rules of Criminal Procedure, which requires the court
15
to "inform counsel of its proposed action upon the requests [for
jury instructions] prior to their arguments to the jury."
In evaluating a claim that the trial court violated Rule 30,
we review the record to determine whether there has been
"substantial compliance" with the requirement of advance notice,
and whether the Defendants have been prejudiced by the violation.21
The district court explained to counsel after the jury charge
that he declined to give the requested jury instruction because he
believed that the amount was not relevant to the charge. The
district court was correct. Quantity is not an element of the
crimes proscribed by 21 U.S.C. §§ 841(a)(1) or 846, and only need
be proved when the government seeks an enhanced penalty.22
Furthermore, it is within the judge's discretion to include a
special issue to the jury concerning the amount of contraband
involved.23
21
United States v. Robertson, 659 F.2d 652, 658-59 (5th Cir.
1981). The government argues that Defendants failed to preserve
properly their objection because they did not complain in the
trial court of a lack of prior notice and did not request
reargument. Therefore, they assert that the convictions can only
be overturned for "plain error." Fed.R.Crim.P. 30 and 52(b). We
disagree. The record clearly indicates that the Defendants made
known to the court their specific objections to the court's
decision to omit the proffered instruction. We do not think it
was necessary for the Defendants to also complain in precise
terms that they lacked prior notice of the court's decision or to
request reargument in order to preserve their objection for
appeal.
22
United States v. Brown, 887 F.2d 537, 540 (5th Cir. 1989);
United States v. Gordon,
876 F.2d 1121, 1125 (5th Cir. 1989);
United States v. Morgan,
835 F.2d 79, 81 (5th Cir. 1987).
23
United States v. Campuzano, 905 F.2d 677 (2d Cir.), cert.
denied,
111 S. Ct. 363 (1990); United States v. Owens,
904 F.2d
411 (8th Cir. 1990).
16
The Defendants argue that they were entitled to the 100-gram
instruction because it is a "lesser included offense" to that of
conspiring to possess with intent to distribute in excess of one
kilogram and that the evidence was insufficient to prove that they
were involved in a conspiracy with respect to more than 239 grams.
We disagree for two reasons. First, the Defendants are only
entitled to a lesser included instruction if 1) the elements of the
lesser offense are a subset of the elements of the charged offense;
and 2) the evidence at trial is such that a jury could rationally
find the Defendants guilty of the lesser offense, yet acquit on the
greater.24 As we pointed out above, quantity is not an element of
the crimes charged. The only difference between the two
instructions is the quantity involved, therefore, the two
"offenses" are in fact the same. In reality, the district court
could have issued an instruction that included no quantity at all.25
Therefore, the court's reference to the quantity in the jury
instructions was more on the order of a special issue.26 It was not
an instruction on an element of the crime.
Second, our review of the record convinces us that there was
more than enough evidence for a rational jury to find beyond a
reasonable doubt that both Defendants were guilty of conspiring to
possess with intent to distribute in excess of the greater amount--
24
United States v. Browner, 889 F.2d 549, 551 (5th Cir.
1989).
25
See Campuzano, 905 F.2d at 679.
26
Cf. id.
17
one kilogram. The district court expressed the same belief when
considering the Defendants' objection to the charge. Furthermore,
the government presented no evidence, and suggested no theory, that
there was a separate conspiracy to deliver only the 239 grams of
heroin. Other than the delivery itself, neither Defendant has
alleged any evidence that would have supported a conspiracy for the
lesser amount.
Penaflor has challenged his conviction on the ground of
insufficiency of the evidence. Valencia, on the other hand, does
not challenge the sufficiency of the evidence against him on either
of the two counts for which he was convicted. He maintains,
however, that this has no effect on his omitted instruction claim
because the standards for assessing the two are "diametrically
opposed." He correctly asserts that in evaluating the sufficiency
of the evidence, an appellate court must sustain the conviction if,
viewing the evidence in the light most favorable to the government,
a reasonable trier of fact could have found that the evidence
established guilt beyond a reasonable doubt.27 But, he observes,
the inquiry is reversed when the defendant complains that the court
has failed to give an instruction to the jury: A defendant is
entitled to an instruction on his defensive theory if there is any
foundation in the evidence.28 Presumably, Valencia's defensive
27
United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982)
(en banc), aff'd
462 U.S. 356 (1983).
28
United States v. Cordova-Larios, 907 F.2d 40, 42 (5th Cir.
1990).
18
theory is that if he is guilty of any offense, it is of a
conspiracy with regard to just the 239 grams delivered.
We reject Valencia's argument for two reasons. First, we find
nothing in the jurisprudence that would allow us to accept the
proposition that guilt of a lesser included offense is a defense to
the greater offense. Second, we find no foundation in the evidence
for Valencia's defensive theory, if indeed it is a defensive theory
at all.
The Defendants further complain that their right to effective
assistance of counsel was violated because closing arguments were
presented without the benefit of knowing a lesser-included offense
charge would not be given. It is not enough, however, to show
merely a violation; the Defendants must demonstrate an actual
resulting prejudice that would affect the outcome of the case.29
Valencia argues that had his attorney known of the court's decision
before argument, she would have concentrated on Valencia's
innocence rather than on the amount of drugs involved in the
conspiracy. But the record confirms that counsel did argue to the
jury that the evidence did not support a conspiracy conviction, and
suggested that Marquez's testimony was fabricated or "embellished."
Valencia even suggested that the agents misidentified him, and that
Defendants did not know that the substance they were carrying was
heroin. Furthermore, as we noted above, Valencia has not
challenged the sufficiency of the evidence with respect to the
29
Strickland v. Washington, 466 U.S. 668, 687 (1984).
19
charge of conspiracy to possess with intent to distribute in excess
of one kilogram.
Penaflor's argument was completely void of any comments
concerning a lesser-included conspiracy. He simply argued that he
was not a participant in any conspiracy. Any error in misleading
Penaflor's counsel was harmless.
We cannot see how the outcome of the case would have been
different had the court given the jury the requested lesser
included instruction, even if the Defendants had been entitled to
such a charge. The evidence was clearly sufficient to convict both
Defendants on both counts, and the Defendants were not deprived of
effective assistance of counsel. The district court substantially
complied with the advance notice requirement of Rule 30, and did
not err when it failed to include the lesser included instruction
in the jury charge.
C. The Hearsay Statements
During the trial, one of the two DEA agents involved in the
investigation testified that after waiting for months the DEA had
finally decided to arrest the Defendants because "I was told by the
informant that had made some calls to associates of Javier Carrasco
that Javier Carrasco couldn't be found in Mexico. He was on the
run is what the terms was used because he had some arguments with
other narcotics traffickers in Mexico. Whether it was true, I
don't know." The Defendants objected at that time and continue to
assert on appeal that the agent's comments were inadmissible
hearsay. We disagree. These comments were offered, not for the
20
truth of the matters asserted--the agent himself maintained that he
did not know if the statements were true--but to explain why, after
waiting nine or ten months following the drug transaction, the DEA
decided to arrest the Defendants. That is the basis on which the
district court allowed the statements. We agree that the
statements were not hearsay and therefore were admissible.
III.
CONCLUSION
The district court did not abuse its discretion in admitting
the English transcript of the tape of the Spanish language
telephone conversation into evidence while refusing to allow the
tape itself to be played for the jury. Neither did the district
court err when, despite its earlier indication to the contrary, it
omitted a proffered instruction on a lesser included offense
because mere lesser quantity is not a lesser included offense; and
there was sufficient evidence to support conviction on the one-
kilogram conspiracy charge. Finally, the court did not err in
allowing a DEA agent to recount a conversation with an informant to
explain why the DEA waited months to arrest the Defendants. The
statements were not hearsay because they were not offered to prove
the truth of their content, only that the action of the DEA was
made in reliance on the statements irrespective of their truth.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
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