USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1120
UNITED STATES,
Appellee,
v.
HONORIO GONZALEZ-MALDONADO,
a/k/a NORI, a/k/a JOHN DOE 94 CR360-3,
a/k/a ONORIO GONZALEZ-MALDANDO,
Defendant - Appellant.
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No. 96-1296
UNITED STATES,
Appellee,
v.
GERMAN MONTALVO, a/k/a ITO,
a/k/a JOHN DOE 94 CR360-2,
Defendant - Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. H ctor M. Laffitte, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Jos A. Pag n-Nieves, by appointment of the Court, with whom
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Jos A. Pag n Nieves Law Offices, was on brief for appellant
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Honorio Gonz lez-Maldonado.
Judith H. Mizner, with whom Ricardo R. Pesquera-Annexy was
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on brief for appellant Germ n Montalvo.
Lena Watkins, Attorney, with whom John C. Keeney, Acting
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Assistant Attorney General, Theresa M.B. Van Vliet, Chief,
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Criminal Division, Narcotic and Dangerous Drug Section, U.S.
Department of Justice, and Guillermo Gil, Acting United States
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Attorney, were on brief for appellee.
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May 30, 1997
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TORRUELLA, Chief Judge. Appellants Honorio Gonz lez-
TORRUELLA, Chief Judge.
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Maldonado ("Gonz lez-Maldonado") and German Montalvo ("Montalvo")
appeal their convictions on charges of money laundering in
violation of 18 U.S.C. 2, 1956(a)(1)(A)(i) and
1956(a)(1)(B)(i) and conspiracy to possess with intent to
distribute five or more kilograms of cocaine, in violation of 21
U.S.C. 846. For the reasons stated herein we vacate their
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convictions and remand to the district court.
On appeal from a conviction, we review the facts in the
light most favorable to the verdict. See United States v.
___ ______________
Staula, 80 F.3d 596, 599 (1st Cir.), cert. denied, 117 S. Ct. 156
______ ____________
(1996). On that basis, the jury could have found the following
facts.
In the spring of 1993, the FBI began a money laundering
investigation. An undercover FBI agent, Agent Mart n Su rez, and
an informant infiltrated a money laundering organization that
worked under the direction of a man known as "Honcho." Honcho
communicated to Agent Su rez and the informant that they would be
contacted through their pager, by a person using the code "Romero
55." On May 24, 1994, Agent Su rez received a page from Romero
55 and contacted him by phone. Agent Su rez, the informant, and
Romero 55 -- who was later identified as Julio Robles-Torres
("Robles") -- arranged to meet the following day, at which time
Romero 55 delivered approximately $600,000 to Agent Su rez and
the informant. The conversation that took place at the meeting
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was recorded, although there were periods when the recorder
malfunctioned.
At trial, the court admitted the taped conversation
into evidence over the objection of defense counsel. Agent
Su rez testified that during the interrupted portion of the tape,
Robles indicated that he had started an individual named "Papo"
in "this business" and that Papo had made six million dollars.
Agent Su rez testified that, in the context of the conversation,
he interpreted "this business" to mean the drug business. The
exchange between Agent Su rez and government counsel went as
follows:
Agent Su rez: I recall that he had
mentioned that he had started Papo in
this business. He had -- also mentioned
that Papo was in the car repair business.
Government: Okay. When you say that he
started -- he, Robles, had started Papo
in that business, what business is he
talking about?
Agent Su rez: In the drug business.
Tr. 2 at 278.
During the taped conversation, Robles also stated that
he had given a lottery ticket in the amount of $250,000 to a
friend of Papo. Agent Su rez testified that drug smugglers buy
winning lottery tickets in order to launder money. There was no
mention of Montalvo or Gonz lez-Maldonado during the taped
conversation.
Based on the delivery of $600,000 and the conversation
between Agent Su rez and Robles, the government obtained a court
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order authorizing the interception of communications on Robles'
cellular phone. At trial, the government introduced more than
sixty of these intercepted calls. The government states that in
fifteen of those calls, appellant Montalvo, identified as "Ito,"
spoke with Robles; and in ten calls, Gonz lez-Maldonado,
identified as "Nori," spoke with Robles.
On June 27, 1994, FBI Special Agent Daniel Gonz lez
intercepted a conversation between Robles and Papo. During that
conversation, Robles and Papo referred to "tickets." Agent
Gonz lez, over objection, testified that the word "ticket"
referred to money. Neither appellant participated in or was
mentioned during the call.
On June 28, 1994, six conversations were intercepted by
police. The jury could have concluded that appellant Montalvo
participated in one of these calls. The first call was to
appellant Gonz lez-Maldonado at his store, Mazda Fever.
Gonz lez-Maldonado indicated that he had four tickets, and Robles
said that they could combine their tickets.
Based on these calls, another FBI Special Agent,
Michael Plichta, set up surveillance at Mazda Fever. He observed
Robles arrive in a gray Volvo around 4:00 p.m., on June 28, meet
briefly with an unidentified male, and then drive around back,
where he remained, out of sight, for twenty minutes. At 4:20
p.m., an individual identified only as "Chepe" called Robles, who
stated that he was picking up the tickets at that moment and that
he would proceed to deliver them. When Robles departed, he was
-5-
followed to a Ponderosa restaurant, where he met briefly with two
men. Shortly thereafter, the two men were detained and $715,309
was seized from a suitcase and a cardboard box found in their
car. The following day, Papo and Robles had three telephone
conversations about the seizure, including the question of who
would assume responsibility for the lost money.
In recorded conversations on July 8, 1994, Robles
confirmed with Montalvo and an individual identified as "Gurucho"
that Gonz lez-Maldonado had all the tickets. In his conversation
with Gurucho, Robles indicated that Gurucho should contact
Gonz lez-Maldonado about a delivery. Gonz lez informed Robles
that Gurucho had directed them to make a delivery to an
individual identified as "Nina" at the Condado Plaza Hotel.
On July 9, 1994, the FBI established surveillance at
the Condado Plaza Hotel. FBI Special Agent Jane Peltier
testified that Robles went to Mazda Fever around 8:30 a.m.
Shortly after, he left Mazda Fever and proceeded to the Condado
Plaza Hotel parking garage, arriving around 9:00 a.m. Carrying a
gray bag, he went to the eighth floor, and then left the hotel
empty-handed. FBI agents entered room 825 and recovered the gray
bag and seized $243,600 from the safe in the room.
At the time of Montalvo's arrest, police seized, among
other things, a photocopy of a Puerto Rico lottery check, two
pagers, and two notebooks. In addition to Montalvo and Gonz lez-
Maldonado, the police arrested Robles. The three were to be
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tried together until, in March 1995, Robles was found incompetent
to stand trial and the case against him was severed.
Appellants assert several claims on appeal. We find
some of those claims valid, warranting reversal of the
convictions. In order to give as much guidance as possible to
the district court, we also discuss some of the other claims that
are likely to resurface if there is a new trial.
I. The Psychiatric Testimony of Dr. Jos Fumero
I. The Psychiatric Testimony of Dr. Jos Fumero
Appellants argue that the district court erred in
excluding the testimony of Dr. Fumero, the psychiatrist who had,
at the court's direction, initially examined Robles for
competency. This claim includes two distinct arguments. First,
appellants claim that the court erred in excluding Dr. Fumero's
testimony after defense counsel had relied on an earlier ruling
that the testimony would be allowed. Second, appellants assert
that the court's decision to exclude Fumero's testimony was based
on the mistaken belief that the testimony was offered only to
address the issue of Robles' competency as a witness. Appellants
contend that the testimony was actually offered to:
provide information concerning Robles'
medical history and his diagnosed
schizophrenia, and the possible
ramifications of Robles' illness for
evaluation of the evidence to be
introduced at trial -- to provide
information relevant to whether, as a
result of his mental disease or defect
Robles was unable to appreciate the
nature and quality or wrongfulness of his
acts in May-June, 1994; or whether
aspects of his illness were relevant to
assessing the reliability and meaning of
Robles' statements.
-7-
Brief of Appellant Montalvo, at 17. We deal with each claim in
turn.
A. Opening Statements
A. Opening Statements
Prior to trial, defense counsel met with Dr. Fumero,
who had conducted the competency examination of Robles. Fumero
opined that Robles was suffering froma mental illness at the time
of the offenses and that his mental illness resulted in a
tendency to exaggerate. Defense counsel informed the court that
he intended to have Fumero testify at trial, arguing that
Fumero's testimony should be admitted so that the jury could
determine the weight to be given to the taped conversations. Tr.
1 at 7. The court stated that it would "let Dr. Fumero testify
and then let that go to the jury."1 Tr. 1 at 21.
During opening statements, counsel for both defendants
made reference to Robles' mental state. Counsel for Gonz lez-
Maldonado promised the jury that he would produce a psychiatrist
who would testify that a person in Robles' condition
"exaggerates, and that everything that he talks about is
greater." Tr. 1 at 163. Counsel for Montalvo, in his opening
statement, stated:
The expert selected by this Court,
Dr. Fumero, selected by this Court, will
come here, will sit there and will
testify that during this conspiracy . . .
Mr. Julio Robles-Torres was mentally
insane. Therefore, you cannot trust him.
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1 Following opening statements, the court reiterated its intent
to allow Dr. Fumero to testify. "I said I would allow Dr. Fumero
to testify at trial." Tr. 1 at 189.
-8-
You cannot put much attention to what
he's saying because he exaggerates.
Tr. 1 at 169.
During the presentation of defendants' case, the court
reconsidered its earlier decision and decided that Dr. Fumero
would not be allowed to testify because the testimony would only
go to the issue of Robles' competency as a witness, which is a
question for the court, and that evidence of a mental defect does
not render testimony inadmissible. See Tr. 8 at 1506.
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Appellants argue that even if Fumero's testimony was
properly excluded, the court committed reversible error by first
ruling that it would permit Fumero to testify and then, after the
close of the government's case, ruling that his testimony would
be excluded.
In Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988),
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defense counsel, in his opening, told the jury that he would call
a psychiatrist and a psychologist to show that the defendant had
no appreciation of what he had done. Counsel subsequently rested
his case without calling the promised doctors, although they were
available. On appeal, this court held that the failure to call
these witnesses amounted to ineffective assistance of counsel,
stating that "little is more damaging than to fail to produce
important evidence that had been promised in an opening." Id. at
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17. "The first thing the ultimately disappointed jurors would
believe, in the absence of some other explanation, would be that
the doctors were unwilling, viz., unable, to live up to their
billing. This they would not forget." Id. "[T]he jurors'
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-9-
conclusion would remain that impartial experts -- the most
qualified witnesses -- would not testify as counsel had said they
would; in effect a contradiction of the favorable lay witnesses,
much worse than if he had not mentioned the doctors initially."
Id. Furthermore, "to promise even a condensed recital of such
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powerful evidence, and then not produce it, could not be
disregarded as harmless. We find it prejudicial as a matter of
law." Id. at 19.
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The case at bar raises similar concerns. The opening
statements for the defense included a promise to the jury that a
psychiatrist would testify to the effect that Robles exaggerates
as a result of his mental illness. Unlike in Anderson, it was
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the district court that prevented the defense from fulfilling its
promise to the jury. Having obtained the assurance of the court
that Dr. Fumero would be allowed to testify, defense counsel
stated as much to the jury. When the court later changed its
mind and ruled that the expert would not be permitted to testify,
defendants were unable to produce the promised testimony.
Like the jury in Anderson, the jury in this case was
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likely to infer from defense counsel's failure to call Dr. Fumero
that he was unwilling to testify for the defense. Nor was the
jury informed of the fact that it was the court's ruling, rather
than the defendants' decision, that kept Dr. Fumero off the
stand. Although Anderson concerned an ineffective assistance of
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counsel claim, the principle behind Anderson applies in this
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case. A defendant's opening statement prepares the jury to hear
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his case. If the defense fails to produce promised expert
testimony that is critical to the defense strategy, a danger
arises that the jury will presume that the expert is unwilling to
testify and the defense is flawed. That the defendant should
suffer this presumption because he relied on a prior ruling of
the trial court that the same court later reversed, rather than
because of poor judgment on the part of his own counsel, in no
way changes the fact that the presumption formed in the minds of
the jury is prejudicial. As we did in Anderson, we find that
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promising to admit this important evidence and then failing to
produce it is prejudicial as a matter of law in the circumstances
of this case. Following Anderson, therefore, we find that
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denying defendants the opportunity to have Dr. Fumero testify, in
light of the fact that the court's decision on the matter led
defense counsel, in their opening remarks, to promise the
expert's testimony to the jury, was reversible error.
B. The Admissibility of Dr. Fumero's Testimony
B. The Admissibility of Dr. Fumero's Testimony
Appellants also challenge the district court's ruling
that Dr. Fumero's testimony is inadmissible. On appellate
review, "[a] district court's decision to admit or exclude expert
testimony is entitled to great deference." United States v.
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Shay, 57 F.3d 126, 132 (1st Cir. 1995). We will reverse the
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trial court's decision on this question only if "(1) the district
court based the decision on an incorrect legal standard, or (2)
we have a 'definite and firm conviction that the court made a
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clear error of judgment in the conclusion it reached based on a
weighing of the relevant factors.'" Id. (citations omitted).
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Defendants' argument proceeds as follows. Dr. Fumero
was a qualified witness within the meaning of Federal Rule of
Evidence 702, as the court agreed. Tr. 8 at 1483. He proffered
to the court that the symptoms of Robles' mental condition
include "verbosity;" "grandeza" ("[h]e has to feel important and
the center of attention as part of his . . . fragmented ego
needs"), Tr. 8 at 1497; and exaggeration. Because defendants
faced criminal charges based largely on recorded conversations
involving Robles, and because the government claimed that these
conversations demonstrated the existence of a drug conspiracy,
the weight placed on the taped conversations by the jury was of
paramount importance. Indeed, the defendants' case was founded
on the view that the recorded conversations were discussions of
legitimate business dealings. If the jury could be convinced
that Robles' testimony was unreliable because he had a medical
condition that led him to exaggerate, it would be more likely to
believe the defense theory that they were involved in legal
business activity.
The district court ruled that Dr. Fumero would not be
allowed to testify on the ground that "the fact that a person may
suffer a mental defect or problem does not render his testimony
inadmissible." Tr. 8 at 1459. The court stated further that
"[y]ou cannot bring a witness and say, well, this man is not
telling the truth or he can't tell the truth." Tr. 8 at 1465.
-12-
The court appears to have understood Dr. Fumero's testimony to be
related to the competency of Robles: "What I suggest to you is
that we give to the jury a stipulation that Julio Robles had been
held not competent to stand trial at this time but that he is
being evaluated further." Tr. 8 at 1466.
It is well established that a witness' mental state can
be relevant to the issue of the witness' credibility. United
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States v. Butt, 955 F.2d 77, 82 (1st Cir. 1992). The competency
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of a witness to testify is a determination to be made by the
trial judge, but issues of credibility are for the trier of fact.
See United States v. Carroll, 105 F.3d 740, 743 (1st Cir. 1997);
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United States v. Hyson, 721 F.2d 856, 864 (1st Cir. 1983).
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The ability of parties to offer expert testimony on the
question of credibility is not, however, unlimited. "[A]n
expert's opinion that another witness is lying or telling the
truth is ordinarily inadmissible pursuant to Rule 702 because the
opinion exceeds the scope of the expert's specialized knowledge
and therefore merely informs the jury that it should reach a
particular conclusion." Shay, 57 F.3d at 131. On the other
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hand, "no constitutional provision, law, or rule requires the
exclusion of expert testimony simply because it concerns a
credibility question." Id. To be admissible under Federal Rule
___
of Evidence 702, a proposed expert witness must: (1) be
qualified to testify as an expert by "knowledge, skill,
experience, training, or education," Fed. R. Evid. 702; (2) the
testimony must concern "scientific, technical, or other
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specialized knowledge," Fed. R. Evid. 702; and (3) the testimony
must "assist the trier of fact to understand the evidence or to
determine a fact in issue." Fed. R. Evid. 702. Shay, 57 F.3d at
____
132.
In Shay, the defendant, Shay Jr., was convicted of
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"conspiracy and aiding and abetting an attempt to blow up his
father's car." Shay, 57 F.3d at 128. Shortly after the bombing,
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he told a police officer that "he was sorry about it and wished
he could turn back the hands of time." Id. The government
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argued that this statement was evidence of Shay Jr.'s guilt. As
part of his defense, Shay Jr. sought to call Dr. Phillips, a
psychiatrist, to testify that Shay Jr. suffered from a mental
disorder known as "pseudolog a fant stica." The expert witness
was to testify that this illness caused Shay Jr. to fabricate
self-aggrandizing lies that would place him at the center of
attention. Id. at 129-30. The district court excluded this
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testimony on the ground that the jury was capable of determining
the reliability of Shay Jr.'s statements.
The Shay panel held that expert psychiatric testimony
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can be admitted in appropriate circumstances to establish a
witness' "character for truthfulness." Id. at 131. The instant
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case is governed by Shay, and our analysis follows the one
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adopted there.
Neither party challenges Dr. Fumero's qualifications as
an expert. The proffered testimony concerned the mental illness
of Robles and its impact on his behavior -- implying that it
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concerned "scientific, technical or specialized knowledge." The
remaining question is whether it would have assisted the trier of
fact to understand the evidence or to determine a fact in issue.
The question that a court must answer in determining whether a
proposed expert's testimony will assist the trier of fact is
"whether the untrained layman would be qualified to determine
intelligently and to the best degree, the particular issue
without enlightenment from those having a special understanding
of the subject matter involved." Id. at 132 (internal quotation
___
marks omitted). Dr. Fumero's testimony would have discussed
Robles' mental illness. Dr. Fumero would have testified that
Robles, as a result of his illness, was prone to exaggeration.
Moreover, this case has a unique dimension. Because
Robles was incompetent to testify, the jury did not have the
usual chance to evaluate his demeanor. Yet, the tapes containing
his statements were introduced, and they were damaging to the
defense. In light of the fact that the government's case was
heavily dependent on Robles' taped conversations, we believe
that, in these unusual circumstance, the testimony that he had a
mental illness that led to "verbosity," "grandeza," and
exaggeration was highly relevant and that an untrained layman
would not be qualified to determine intelligently, and to the
best degree the weight to place on Robles's recorded statements
without enlightenment from Dr. Fumero.
The government argues that Dr. Fumero's testimony
should be disallowed because the taped conversations featured
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current actions which were largely corroborated. To the extent
that Robles did suffer from the mental illness at issue, however,
Dr. Fumero's testimony could be relevant to the credibility of
current statements. The defense theory is that Robles
exaggerated his situation in statements that he made -- a claim
for which Dr. Fumero's testimony is clearly relevant. That the
statements were, in the view of the government, accurate, is
something for the jury to consider in its deliberations. It goes
to the weight to be given to the evidence and is not a reason to
exclude Dr. Fumero's testimony.
We conclude, therefore, that the district court erred
in refusing to allow Dr. Fumero to testify.2
II. The Use of the Government's Transcripts
II. The Use of the Government's Transcripts
A. The Transcripts
A. The Transcripts
Defendants also claim that transcripts provided by the
government and used by the jury should not have been permitted.
The government provided transcripts of the taped conversations to
the jury so that when the tape was played, the jury could follow
along on the transcripts. The transcripts included quotation
marks around certain words that the government claimed were code
words used to conceal the illegal nature of the conversations.
For example, quotation marks were placed around words such as
"ticket," which the government claimed referred to money, and
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2 We need not engage in a harmless error analysis at this point
because we are reversing and remanding on other grounds, as
discussed in the preceding section of this opinion.
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"accident," which allegedly referred to arrest. Defendants'
objection to these transcripts was overruled.
This circuit allows the use of transcripts as a jury
aid to tape recording playback. See United States v. Carbone,
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798 F.2d 21, 26 (1st Cir. 1986). Where transcripts are used, the
judge should, as was done here, "make clear [to the jury] that
the tapes, not the transcript, constitute evidence in the case."
United States v. Richman, 600 F.2d 286, 295 (1st Cir. 1979).
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Furthermore, we have stated that:
Even if transcripts are not admitted in
evidence, in the sense of being marked as
exhibits, they are read and relied on by
the jury to follow the playback. They
should, therefore, be as accurate as
possible.
Carbone, 798 F.2d at 27.
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The quotation marks used in the transcripts submitted
to the jury in this case reflect the government's theory of the
case. The government does not claim that there is any audible
emphasis or other vocal inflection placed on the marked words
that is discernible when listening to the tape and failed, both
at trial and on appeal, to offer any legitimate explanation for
the quotation marks. We hold that the trial court committed
erred when it allowed the use of transcripts that contained
quotation marks around certain words. It is not enough that the
court instructed the jury that only the tapes, and not the
transcripts, were evidence. Nor is it enough for the government
to subsequently present evidence that the words were code words.
-17-
The government should not be allowed to bolster its argument by
customizing the transcript to reflect its own theory of the case.
B. The Agents' Interpretation of the Transcript
B. The Agents' Interpretation of the Transcript
The next claim advanced by appellants is that the court
erred when it allowed FBI agents to interpret the recorded
conversations. Appellants' briefs fail to offer detailed
descriptions of the incidents to which they object, although
Gonz lez-Maldonado's brief cites to seventeen incidents that are
generally alleged to represent occasions on which the agents'
interpretations went beyond interpretation of code words.
Although appellants objected on certain occasions, they failed to
object on many of the instances cited in Gonz lez-Maldonado's
brief.
Although expert testimony is permitted in order to
assist the jury in understanding "code-like" conversations in
tape recordings, interpretations of clear conversations are not
admissible. See United States v. Montas, 41 F.3d 775, 783-84
___ _____________ ______
(1st Cir. 1994); United States v. Lamattina, 889 F.2d 1191, 1194
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(1st Cir. 1989).
Expert testimony on a subject that is
well within the bounds of a jury's
ordinary experience generally has little
probative value. On the other hand, the
risk of unfair prejudice is real. By
appearing to put the expert's stamp of
approval on the government's theory, such
testimony might unduly influence the
jury's own assessment of the inference
that is being urged.
Montas, 41 F.3d at 784.
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We are conscious of the fact that the interpretation of
alleged code-words used by the defendants in a complex case such
as this may require the expert to make statements about the
context in which those words are being used. Nevertheless, we
find that in some of the instances cited by appellants, the court
erred by allowing FBI agents to comment on clear statements
contained on the tapes. Because we are reversing on other
grounds, we need not review each alleged transgression. Instead,
we offer an example, in the hope that such errors can be avoided
if there is another trial.
At one point Agent Plichta observed, in reference to
one of the recordings, that the participants in a conversation
"appeared relieved when they -- when they -- when they discussed
the fact that apparently they'd been able to make the delivery of
money and nothing happened. They were both relieved and I
believe one of them even chuckles a bit about that." Tr. 5 at
848. That the speakers on the tape were, or were not, relieved
is for the jury to determine, and the testimony of the agent does
not assist them in this effort.
III. Spanish Definitions in Jury Instructions
III. Spanish Definitions in Jury Instructions
Appellant Montalvo claims that the district court erred
in its instructions to the jury. Specifically, he alleges that
the court included in its definition of the term "willfully" a
Spanish translation that is inaccurate.
In delivering its instructions, the court stated the
following:
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The word "knowingly," as that term has
been used from time to time in these
instructions, means that the act was done
voluntarily and intentionally and not
because of mistake or accident. That is,
"knowingly" means in Spanish a sabiendas.
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The word "willfully" -- that is
voluntariamente in Spanish -- as that
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term has been used from time to time in
these instructions, means that the act
was committed voluntarily and purposely
with the specific intent to do something
the law forbids; that is to say, with bad
purpose either to disobey or disregard
the law . . . .
Now, unlawfully -- in Spanish
ilegalmente -- means contrary to law.
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Tr. 9 at 1704-05.
Montalvo argues that the term voluntariamente is
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equivalent to the English term "voluntary" and, therefore,
represents only one aspect of willfulness. As the English
definition suggests, willfulness also requires that the act be
committed purposely and with the intent to do something that the
law forbids. See United States v. Yefsky, 994 F.2d 885, 899 (1st
___ _____________ ______
Cir. 1993). We conclude that Montalvo is correct in his
assertion that the term voluntariamente means "voluntary." See
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The Collins Spanish-English English-Spanish Dictionary (2d ed.
1988). It follows that the use of this term in order to assist
jurors, whose predominant language may be Spanish, in
understanding the term "willfully" was ill-advised. We need not
inquire into the question of whether it is reversible error,
however, as we are reversing the judgment on other grounds.
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We add the following note of caution. Although we do
not believe that there should be an absolute rule prohibiting the
use of non-English words when instructing the jury, we do believe
that this practice is inadvisable and should be discouraged. The
English meaning of the word "willfully," for example, is
adequately covered by an instruction such as those that have been
approved by this court in the past. See, e.g., United States v.
___ ____ _____________
Shadduck, Nos. 95-1395, 95-1396, 96-1342, __ F.3d __, 1997 WL
________
191877, at *4 (April 24, 1997); Yefsky, 994 F.2d at 899.3 We
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therefore instruct the district courts to frame instructions in
English.
IV. The Admission of Evidence
IV. The Admission of Evidence
A. The Lottery Check
A. The Lottery Check
At trial, the government admitted into evidence a
photocopy of a 1992 lottery check seized from Montalvo at the
time of his arrest. The check was in the amount of $250,000.
The government introduced the evidence because Robles revealed to
the undercover team that he had provided a winning lottery ticket
in the amount of $250,000 to a friend of Papo who, the government
claimed, was in the drug business. That appellant possessed a
check for the exact amount was, the government argued, probative
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3 Reasonable proficiency in teh English language is a required
qualification for a juror. See 28 U.S.C. 1865(b)(2) & (3);
___
United States v. Aponte-Su rez, 905 F.2d 483, 492 (1st Cir.
______________ _____________
1990). That juries understand English is also a practical need.
The use of English is necessary for the creation of an appellate
record which will be read by appellate judges who may not be
versant in other languages, and who do not have the benefit of an
official translator as is available in district courts.
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of his involvement in the alleged conspiracy. Furthermore, the
government claims that the fact that the check was dated two
years before the events described does not change the fact that
it was relevant because Papo had worked with Robles for a long
time and the check was offered to demonstrate the existence of a
conspiracy long before the events of May through July 1994.
Appellant Montalvo claims that the check lacked
relevance to the case. He claims that "[t]here was no evidence
to show that the ticket had come from Robles, that it was
purchased with the proceeds of drug transactions or that it
evidenced Montalvo's involvement with Robles in drug distribution
at some earlier time." Brief of Appellant Montalvo, at 32. In
essence, appellant contends that there was nothing to indicate
that the check was evidence of any element of any charged
offense.
We add that, at sentencing, the judge stated, "I don't
find a reasonable connection for this case to find by a
preponderance of the evidence that the $250,000 lottery ticket
that was purchased is part of this conspiracy, and therefore I am
excluding it." Transcript of Sentencing, at 10.
We review this evidentiary ruling for abuse of
discretion. United States v. Brandon, 17 F.3d 409, 443-44 (1st
_____________ _______
Cir. 1994).
Our review of the testimony fails to reveal any
demonstrated connection between the photocopy of the check and
the charges brought against defendants. The check was from
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before the dates at issue in this case and no evidence was put
forward to suggest that it was connected to drug transactions,
except the general claim by the government that lottery checks
were used to launder money. The government argued at trial,
however, that the check was relevant to demonstrate the existence
of the conspiracy prior to the dates at issue. Given our
deferential standard of review, we, therefore, do not find abuse
of discretion in this case. Although we might conclude
differently if our review were de novo, we do not believe that
________
the court abused its discretion in accepting this argument.4
B. The Notebook Seized During Montalvo's Arrest
B. The Notebook Seized During Montalvo's Arrest
Appellant Montalvo also objects to the admission of a
notebook seized at his home at the time of his arrest. The
government's expert witness, FBI Agent Carl Jensen, testified
that "[t]he submitted documents are in a format of records which
could be maintained in connection with an illicit drug
distribution business." Tr. 7 at 1203. Appellant argues that
the notebook had no probative value because there was no
indication as to when or by whom the notations had been made,
there were no initials or names, no dollar signs or terminology
attached to the numbers, and no correlation between the numbers
in the notebook and the amounts involved in the offenses charged.
Our review is, once again, on an abuse of discretion
standard and we do not find such abuse here. The government
____________________
4 Our failure to find abuse of discretion, of course, should not
be taken as determinative of whether the lottery check should be
admitted in a future trial.
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advanced the testimony of an expert witness who testified that
the notebook appeared to be a record of drug transactions; and
that it "lack[ed] the class characteristics [one] would expect to
find with legitimate type business records," Tr. 228 at 1203-
1204; and that the apparent prices in the notebook were
consistent with the prices of kilogram quantities of cocaine in
central Florida, where appellant Montalvo lived during the time
frame of these events.
Based on this testimony, we do not find that the court
abused its discretion in admitting the notebook into evidence.
The trial court was in a much better position than this court to
assess the relevance of the notebook. The decision to admit the
notebook was within the sound discretion of the district court.
C. Notebook Seized from Robles
C. Notebook Seized from Robles
Appellant Montalvo next claims error in the admission
of a notebook seized from Robles' home on the ground that it was
not adequately authenticated as required by Federal Rules of
Evidence 901.5 We review for abuse of discretion. United States
_____________
v. Echeverri, 982 F.2d 675, 679 (1st Cir. 1993).
_________
____________________
5 Rule 901 provides, in part:
The requirement of authentication or
identification as a condition precedent
to admissibility is satisfied by evidence
sufficient to support a finding that the
matter in question is what its proponents
claim.
Fed. R. Evid. 901(a).
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We must determine whether "there is sufficient
threshold proof that the document is what its proponent claims it
to be." Id. at 679. The Federal Rules of Evidence take a
___
flexible approach to this issue. The document's authenticity may
be confirmed by "[a]ppearance, contents, substance, internal
patterns, or other distinctive characteristics, taken in
conjunction with circumstances." Id. The notebook was found,
___
along with Robles' identification card, in a briefcase in Robles'
room. Such circumstantial evidence is permitted in order to
authenticate the item. Id. at 680. We do not find that the
___
district court abused its discretion in admitting this document
into evidence.6
V. Sufficiency of the Evidence Claims
V. Sufficiency of the Evidence Claims
Appellants seek to have their convictions reversed and
the case dismissed on the grounds that there was insufficient
evidence, as a matter of law, to convict them. In reviewing such
a claim, we must determine if, "after assaying all the evidence
in the light most amiable to the government, and taking all
reasonable inferences in its favor, a rational factfinder could
find, beyond a reasonable doubt, that the prosecution
successfully proved the essential elements of the case." United
______
States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994). "[W]e do
______ _______
not pass on the credibility of the witnesses, nor do we demand
that the government disprove every hypothesis consistent with the
____________________
6 We repeat our earlier statement that our conclusion that there
was no abuse of discretion should not be taken as a ruling on the
admissibility of the evidence on remand.
-25-
defendant's innocence." United States v. Spinney, 65 F.3d 231,
_____________ _______
234 (1st Cir. 1995) (citations omitted).
In order to prove the conspiracy charge, the government
was required to prove that appellants:
intended to agree and that they intended
to commit the substantive criminal
offense [distribution of cocaine] which
was the object of their unlawful
agreement. Due to the clandestine nature
of criminal conspiracies, the law
recognizes that the illegal agreement may
be either 'express or tacit' and that a
'common purpose and plan may be inferred
from
a
development
and
collocation
of
circumstances.'
United States v. S nchez, 917 F.2d 607, 610 (1st Cir. 1990)
______________ _______
(internal citations omitted).
To prove the money laundering charge, the government
had to demonstrate that defendants:
(a)(1) knowing that the property involved
in a financial transaction represent[ed]
the proceeds of some form of unlawful
activity, conduct[ed] or attempt[ed] to
conduct such a financial transaction
which in fact involves the proceeds of
specified unlawful activity
(A)(i) with the intent to promote
the carrying on of specified
unlawful activity; or
. . . .
(B)knowing that the transaction is
designed in whole or in part to
conceal or disguise the nature, the
location, the source, the
ownership, or the control of the
proceeds of specified unlawful
activity.
18 U.S.C. 1956(a)(1).
The convictions in this case rested on conversations
between appellants and Robles, as well as other conversations
-26-
involving Robles. It was for the jury to determine whether these
conversations related to legitimate business dealings or illegal
drug transactions. Viewing the evidence in the light most
amiable to the government, we conclude that a reasonable jury
could have concluded that the conversations in the tapes
concerned drug related transactions. With respect to Montalvo,
the jury could also have inferred guilt from the notebooks and
the lottery check put into evidence. With respect to Gonz lez-
Maldonado, evidence was presented that transactions took place at
his place of business and a reasonable jury could have concluded
that the taped conversations demonstrated his involvement in the
conspiracy and the money laundering. These conversations could
be interpreted to have dealt with cocaine that had been damaged
in shipment, cocaine stored at his place of business, and cocaine
to be imported in the future. Such inferences were permissible
and, therefore, we find the sufficiency of the evidence claim to
be without merit.
VI. Sentencing
VI. Sentencing
Finally, appellant Montalvo claims error in both the
court's calculation of the quantity of drugs for which he should
be held responsible and the court's role-in-the-offense
determination. Because we are remanding the case, we need not
reach this issue. In the event of a new trial, with different
testimony and different arguments, the trial court will be in a
better position than we are today to determine the quantity of
drugs for which appellants, if convicted, should be held
-27-
responsible, and to make an evaluation of defendants' role in the
offense.
VII. Conclusion
VII. Conclusion
For the reasons stated herein, we vacate appellants'
vacate
______
convictions and remand the case to the district court for further
remand
______
proceedings consistent with this opinion.
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