Appeal from the United States District Court for the District of Oregon. D.C. No. CR-91-302-10-JAR. James A. Redden, District Judge, Presiding.
Before: Stephen Reinhardt, Melvin Brunetti, and Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Brunetti.
A jury convicted Santiago ("Chago" or "Chagon") Pena-Espinoza of conspiracy to distribute cocaine and distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. He timely appeals, arguing that the district court erred in admitting into evidence wiretap transcripts of contested accuracy, hearsay testimony summarizing the contents of these transcripts, and statements of one of his alleged co-conspirators. He also contends that the district court erred in its application of relevant United States Sentencing Guidelines provisions. We affirm the conviction and sentence.
During an extensive investigation of a large drug distribution network, FBI agents made over 100 undercover cocaine and heroin purchases. The FBI used telephone monitoring devices to establish the relationship between Pena-Espinoza and the conspiracy. For instance, agents monitored a conversation between Pena-Espinoza and conspirator Arnoldo Aispuro-Aispuro during which Pena-Espinoza agreed to provide Aispuro-Aispuro with cocaine for a sale. Additionally, an undercover agent/purchaser testified that she saw Pena-Espinoza in the room when this sale actually took place, and that the next day Aispuro-Aispuro told her that Pena-Espinoza would supply the drugs for her next order. Agents also surveilled Pena-Espinoza's house and on three separate occasions observed another conspirator entering it immediately before she departed to deliver drugs to undercover agents. Finally, the transcript of a monitored call linked Pena-Espinoza to $22,430 cash found in a seized vehicle belonging to the conspiracy.
The trial of Pena-Espinoza and his co-defendant, Mor Rodriguez-Zamora,*fn1 began on June 23, 1992. Recorded telephone conversations constituted a key element of the prosecution's case. These conversations numbered over 4800 in all. Most were in Spanish. During the investigation, the FBI kept a running computerized log noting the participants in each conversation and the substance of key statements. The government prepared actual transcripts for only approximately 50 conversations that it intended to discuss at trial.
Defense counsel knew of the government's trial strategy months in advance. Prosecutors planned to introduce the tapes and transcripts and then put investigating agents on the stand. These agents would serve as "readers" of relevant portions of the transcripts; in some cases they would summarize the contents of conversations as they saw fit. The government turned over to the defendants copies of all tapes as well as a copy of the computer log contents by no later than early December 1991.
Until April 1992, the Federal Public Defender's Office (FPD) was coordinating discovery for approximately twenty defendants in the conspiracy. By April 1992, however, the FPD's defendants had all pleaded out and counsel for Pena-Espinoza took custody of the materials. On the Friday before trial the government provided the actual transcripts - in some cases only rough drafts - that it intended to introduce at trial.
On the first day of trial, just prior to jury selection, counsel for Pena-Espinoza objected to the government's strategy. He admitted later that his failure to object or file a motion in limine until then had been "simply a tactical decision." He also pointed out that the defense had "had no opportunity to verify the accuracy of the transcripts or for that matter the accuracy of the voice identification as to who is purported to be saying what." He did not ask for a continuance of any sort.
The district court overruled Pena-Espinoza's objection. The Judge stated that the trial date had been set with the consent of all concerned, that the defendants had had ample warning of the government's planned use of summaries and transcripts and that it was now "too late" to object, and that the trial date had been long delayed precisely to give the defendants time to "get the job done as far as the tapes were concerned."*fn2
The court then inquired as to just how the prosecution wished to present the wiretap evidence. The government responded as follows:
I would simply utilize[,] once the tapes are in[,] readers. . . . My preference would be not to have the witness read or read the entire conversation, but we can do that if the defendants feel that a summary is not appropriate. We can have the entire conversation read by the reader. I would have the witness identify the exhibit [i.e., the particular transcript] by exhibit number and ask for a summary of that. But if there is an objection, we can have the entire conversation read by the reader.
At oral argument, the government explained that it saw this procedure as a time-saving measure.
However, counsel for Pena-Espinoza immediately responded: "We would object to the summary and require the conversation be read verbatim if that's going to be the procedure." The court then rejected his plan in favor of the government's approach:
I will allow the Government to proceed with the reading by summary as counsel for Mr. Zamora points out, the entire transcript can be used in cross-examination if either counsel feels it is helpful to his cause. In other words, it will be then [ ]at the option of the defense counsel as to whether to require the reading of the full transcript or any portions thereof that are most helpful . . .
The trial proceeded in this fashion. The transcripts were not actually admitted until after the testimony of a foundation witness who took the stand after the government's principal witnesses used them. Defense counsel did not object to this sequence.
The jury convicted Pena-Espinoza as charged. He now appeals.
Pena-Espinoza makes two arguments with respect to admissibility of the wiretap evidence. He contends first that the district court erred in admitting English-language transcripts of monitored Spanish-language conversations because it did not allow defense counsel a meaningful opportunity to check the transcripts' reliability. Second, he argues that the court erred in permitting the "readers" to summarize in their own words the contents of key transcripts, rather than simply reading the dialogue into evidence.
1. Reliability. Where there is no dispute as to accuracy, we review for abuse of discretion the district court's decision to allow the use of wiretap transcripts during trial and to permit such exhibits into the jury room. United States v. Taghipour, 964 F.2d 908, 910 (9th Cir.), cert. denied, 121 L. Ed. 2d 210, 113 S. Ct. 283 (1992). This standard applies even where the actual tapes are not played for the jury. Id. at 910 n.1; United States v. Tornabene, 687 F.2d 312, 317 (9th Cir. 1982). Moreover, "[a] nonconstitutional evidentiary error will be reversed for an abuse of discretion only if the court's ruling more likely than not affected the verdict." United States v. Yin, 935 F.2d 990, 994 (9th Cir. 1991).
In this case, the defense argued that it had had no opportunity to investigate the transcripts' accuracy. On the specific circumstances of this case, however, we hold that abuse of discretion remains the proper standard of review. We find it significant that the defense made no meaningful attempt to check the transcripts for accuracy or at least to obtain a continuance to examine such crucial evidence. See United States v. Booker, 952 F.2d 247, 250 (9th Cir. 1991) ("The fact that the transcripts were not available until the day they were to be used does not constitute grounds for reversal. Defense counsel was aware of the existence of the tapes approximately one month before trial and had ample opportunity to review them and to make her own transcripts."). Inasmuch as the vast majority of the taped conversations were in Spanish and they were key evidence, defense counsel had unquestionably known from the outset that English-translation transcripts would be central to the prosecution's case.
These considerations are also highly relevant to our evaluation of Pena-Espinoza's claim on the merits. Moreover, the trial record shows that defense counsel had full opportunities to aggressively cross-examine the "readers" as to transcript contents and for argument to the jury on this subject. See United States v. Armijo, 5 F.3d 1229, 1234 (9th Cir. 1993) (focus is on steps taken at trial to ensure accuracy); see also United States v. Carrasco, 887 F.2d 794, 804-07 (7th Cir. 1989). In addition, Pena-Espinoza has made no showing, either in the district court or on appeal, that the transcripts were substantially inaccurate. Finally, the court gave the defense's requested jury instruction regarding the transcripts.
We are thus left with largely conclusory allegations of possible inaccuracy and no indication that the court's ruling likely affected the jury's verdict. We therefore hold that the district court did not abuse its discretion in admitting the transcripts and permitting the jury to examine them during deliberations.
2. Summaries by the Readers. Similar concerns inform our analysis of Pena-Espinoza's objection to the district court's ruling allowing the government readers to summarize transcript contents in their own words. We review such an evidentiary ruling for abuse of discretion. United States ...