COFFEY, Circuit Judge.
The defendants/appellants, Jesus Zambrana, Sr., Jay Zambrana, and Charles Cole are three of 32 codefendants indicted on various drug charges, including charges of
The thirty-two indictments handed down against the members of this conspiracy were the result of months of investigation on the part of the United States Drug Enforcement Agency (the "DEA") into the activities of a suspected cocaine-distribution network in northern Indiana. The DEA coordinated their investigation with a number of local law enforcement agencies. Eventually, the investigation focused on the defendant-appellant Jesus Zambrana's family and his associates. Because the conspirators were in large part family
At approximately 9 p.m. on April 25, during their surveillance of I-65 near the northbound ramp of Indiana Highway # 231, Lake County, Indiana, Police Officer Timothy Downs and DEA Special Agent Michael Ehrsam observed a rose-colored Oldsmobile Delta 88 traveling northbound on I-65, well below the speed limit, and floating from one lane to another.
Following the stop of the Oldsmobile, the driver produced a driver's license identifying him as Ernest Lonzo, whose name was referred to in the DEA's list of those suspected in the transportation of narcotics from Florida to Indiana. The passenger identified himself as Charles Cole, one of the defendants-appellants.
After Lonzo's arrest, the Oldsmobile was transported to and impounded in the Lake County, Indiana, police garage. On the following day, April 26, 1985, DEA Special Agent Elaine Harris obtained a warrant from a United States magistrate in Hammond,
Each of the defendants was tried separately on the various drug and wire fraud charges. The wire tap on Jesus Zambrana's telephone produced the bulk of the evidence introduced by the government to link the Zambranas (Jesus and his son Jay) and Charles Cole with the attempted delivery of the seized cocaine from Florida to Indiana. In each defendant's trial, the evidence against the defendants consisted primarily of approximately thirty of these tapes (two to three hours of a total three thousand six hundred hours during the time Zambrana's telephone was monitored), which contained conversations between Jay and Jesus Zambrana and several co-conspirators, including Ernest Lonzo. Although the word "cocaine" was never referred to in the telephone conversations,
These taped conversations (spoken in a mixture of English and Spanish) were played to the jury and/or judge at each defendant's trial, respectively. As an aid to the jurors while listening to the tapes, the trial court allowed the jurors to use transcripts of those conversations containing a government-prepared translation to English of the Spanish excerpts of the recordings. Two expert language translation witnesses, Victoria Funes and Ava Cooper, testified as to the accuracy of the government's translation.
The evidence against the defendant-appellant Charles Cole was largely circumstantial, as in many conspiracy cases. The government introduced a number of the tape-recorded conversations between the Zambranas and the other co-conspirators relating to Cole's trip to and from Florida with Lonzo in an attempt to demonstrate that Cole was a knowing participant in the delivery scheme. Cole, on the other hand, testified that he did not know Lonzo was transporting cocaine and that his only purpose for traveling with Ernest Lonzo to and from Miami on April 22, 1985, was to look for a job. Cole also stated that his luggage contained his resumes, along with the classified advertising sections of various Georgia and Florida newspapers listing a number of job openings he had circled, and a folder with materials on how to look for a job. He further testified that he had prepared his resume during a four-week course he had taken earlier in the year on conducting a job search. Although Cole alleged that he was going to Florida to look for a job, on cross-examination, Cole also testified that: (1) he could not remember the names of any persons he talked to in Florida about locating a job; (2) he could not remember the name of even one business where he had allegedly left his resume; (3) he didn't know which cities they were going to or where or how long they would stay; and (4) Lonzo asked Cole to go to Florida with him only about two hours before they actually departed.
Further, contrary to Cole's assertion that his luggage contained resumes, Special Agent Harris testified that her search of Cole's luggage and her search of the entire vehicle failed to reveal the existence of any resumes, much less any other job search material. Cole asserted at trial that his job search materials, including the resumes that he allegedly had printed earlier in the year and had brought with him to Florida, must have been lost when the vehicle was mistakenly released.
Jesus Zambrana was tried before a jury on October 21, 1985, and convicted on all but four of the counts set forth in the indictment, and was sentenced to a term of forty (40) years of imprisonment. Jay Zambrana's case was tried without a jury to the court; the judge found him guilty of 22 of the indictments charged and sentenced him to a term of thirty-five (35) years of imprisonment. Charles Cole was charged in five counts of the indictment,
Because Jesus and Jay Zambrana's contentions on appeal are the same, we address their arguments jointly. Although Cole adopted all of his co-defendants' arguments in his brief, he raises two other specific contentions in his particular case: (1) that the government's loss of Cole's alleged resumes constitutes a violation of his due process rights under Brady v. Maryland, and (2) that the trial court's admission of the aforementioned tapes against him constitutes reversible error since the conversations contained in the tapes consisted of inadmissible hearsay.
Initially we address an argument posed solely by the defendant-appellant Jesus Zambrana. Jesus Zambrana maintains that the trial court abused its discretion when it denied his motion for continuance of the trial date set for October 21, 1985. A brief review of the time frame leading up to his trial is necessary to an analysis of this contention.
Jesus Zambrana was arrested on July 23, 1985, and on the same day the government moved for his detention prior to trial pursuant to 18 U.S.C. § 3142(e) based upon the likelihood that Zambrana, if released on bail, would flee and/or pose a danger to the community. Following his detention hearing, a United States magistrate ordered that Zambrana be detained and set his arraignment for August 2, 1985. During the first week of August 1985, the government provided defense counsel with the government's applications for the wire tap, as well as copies of the court orders authorizing the wire taps of Jesus Zambrana's home telephone. The government also provided DEA investigation reports to counsel for Jesus Zambrana on September 10 and September 25. Two weeks prior to trial, on October 7, 1985, Zambrana filed a motion for a continuance of the trial date, alleging that the government's failure to turn over tapes to the defendant prevented him from adequately preparing for an October 21 trial. However, the defendant had access to all tapes as early as September 10, 1985, approximately six weeks prior to trial, see infra note 7, and on October 9 (12 days before trial) the government provided defense counsel with copies of the specific excerpts of the taped conversations that the government intended to introduce at trial, as well as a transcript of those excerpts. The district court denied Zambrana's request for a continuance on October 11, 1985.
Even though the government delivered to the defendant 12 days before trial the short, two-to-three-hour segment it proposed to introduce at trial, along with its translation of those tapes, and despite the fact that defense counsel had complete access to every tape in the government's possession six weeks prior to trial, Zambrana contends that the government's failure to turn over the two-to-three-hour portion of the tapes and government-prepared translation of those tapes until 12 days before trial made it impossible for his counsel to adequately prepare his case, especially since many of the tapes contained Spanish conversations. Zambrana argues that due to the late production of the tapes, he did not have time to prepare his own translation of the conversations as an alternative to the government's translation, which he asserts is inaccurate. Additionally, at oral argument counsel stressed that his inability to review the tapes prior to October 9 and confront his client with the evidence contained therein prevented him from meaningfully advising his client whether or not to enter a plea of guilty. Moreover, counsel asserts that he had absolutely no opportunity to review tapes other than those the government intended to introduce at trial; and therefore he did not have the opportunity to determine whether or not other conversations taped during five months of surveillance contained exculpatory evidence or whether they revealed a context for statements made in the portion selected by the government for introduction at trial.
The disposition of a request for a continuance is within the trial court's discretion.
Id. at 1285-86 (citations omitted). In Bush, 820 F.2d at 860, this court adopted the list of factors set forth in Uptain as "highly relevant" when a court considers whether to grant or deny a motion for a continuance based on an allegation that the defendant had inadequate time to prepare his defense. The Uptain court stated:
531 F.2d at 1286-87 (footnotes omitted).
In considering the factors enumerated above, we note that:
(1) Zambrana was arraigned on August 2, 1985. Considering that his trial date was set for October 21, 1985, he had some two and one-half months to prepare for trial, more than ample time;
(2) Contrary to Zambrana's suggestion, a review of the record reveals that the case was not overly complex. The government's case he allegedly had difficulty preparing for included the swearing of only 11 government witnesses in addition to the playing of a mere two hours of taped conversation with an accompanying translation from Spanish to English, and a trial that lasted only four days;
(3) The tapes and the government's translations of those taped conversations that the government intended to introduce at trial were provided to defense counsel 12 days prior to trial, and all tapes were made available to counsel for Zambrana as early as September 10, 1985;
(4) In spite of his protestations that he had inadequate time to prepare for trial, Zambrana in fact produced the testimony
In his brief and at oral argument, Zambrana argues that the government's alleged continued failure (during trial and on appeal) to allow him to examine the tape-recorded conversations involving his client has prejudiced his ability to defend himself. The government disputes this assertion, and the record contradicts his allegations. As stated above, the government's letter of September 10, 1985, informed defense counsel that the tapes existed and formally invited counsel to review the tapes. See supra note 7. The record further fails to support the defendant's assertion that the government refused to honor this invitation or that it withheld any of the tapes from the defendants. To the contrary, the record reveals that counsel for the defense had more than ample opportunity to review each and every one of the tapes desired and had adequate time to prepare his defense as well as properly advise his client whether or not to enter a plea of guilty, but for some reason chose not to avail himself of the opportunity to review the tapes. Consequently, his allegation that the government failed to provide him with an adequate opportunity to review the tapes falls on deaf ears. In the course of representing a defendant, we remind defense counsel that it is incumbent upon him to make specific requests for specific evidence in the possession of the prosecution, and it is not the responsibility of the prosecutor or the judge to do the work of the defense counsel. See Ruiz v. Cady, 710 F.2d 1214, 1218 (7th Cir.1983). Where counsel fails to meet this obligation, he cannot shift the responsibility to the government for his failure to properly organize his allotted time in preparation for trial to take advantage of the opportunity to review the evidence the government offered.
While the time between arraignment and trial is mandated by the Speedy Trial Act, the Act allows the trial judge, in the exercise of his discretion, to grant a continuance if certain circumstances exist. See 18 U.S.C. § 3161. But, at the same time, the interest of allowing trial judges to effectively monitor their overworked court calendars necessitates that latitude be afforded the district court to deny continuance motions when appropriate. United States ex rel. Kleba v. McGinnis, 796 F.2d 947, 952 (7th Cir.1986). In Kagan v. Caterpillar Tractor Company, 795 F.2d 601 (7th Cir.1986), we stated that:
Id. at 608. "It is critically important that a trial court be able to maintain control over its calendars and that a trial date once set must be adhered to unless there are compelling reasons for granting a continuance." Stevens v. Greyhound Lines Inc., 710 F.2d 1224, 1230 (7th Cir.1983). In light of these concerns and the circumstances outlined above, we hold that the trial court did not abuse its discretion in refusing to grant Zambrana a continuance.
Each of the defendants challenge the legal sufficiency of the affidavits filed in support of the government's application for the court-authorized electronic surveillance
In the first prong of their argument the defendants maintain that the government's wire tap application and its supporting affidavits failed to comply with the requirements of 18 U.S.C. § 2518(1)(c):
(Emphasis added). Because subsection (c) of the statute is worded in the disjunctive, the government is required to establish the need for electronic surveillance by demonstrating one of the three alternatives listed above. See United States v. Steinberg, 525 F.2d 1126, 1130 (2nd Cir.1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976).
The Supreme Court has noted that § 2518 was enacted in order "to make doubly sure that the statutory authority be used with restraint and only where circumstances warrant the surreptitious interception of wire and oral communications. These procedures [are] not to be routinely employed as the initial step in criminal investigation." United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826-27, 40 L.Ed.2d 341 (1974). Our Circuit recognizes that "the government's burden of establishing its compliance with [subsection 2518(1)(c)] is not great," and that the requirement that the government exhaust "normal investigative procedures" be reviewed in a "practical and common-sense fashion." United States v. Anderson, 542 F.2d 428, 431 (7th Cir.1976). See also United States v. Costello, 610 F.Supp. 1450, 1464-68 (N.D.Ill.1985), aff'd sub nom., United States v. Olson, 830 F.2d 195 (7th Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 708, 98 L.Ed.2d 658 (1988).
With these general principles in mind, we turn to the application and affidavits supporting the issuance of the orders authorizing the electronic telephone wire interception and surveillance of Jesus Zambrana's home telephone. Initially, the defendants contend that the information in the application was insufficient on its face in that it failed to establish that "normal investigative procedures"
Defendants further argue that the government's application for electronic telephone wire surveillance under § 2518(1)(c) failed to demonstrate a factual basis for its "statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." In reviewing a challenge to the "necessity" of a wire tap, we apply an abuse of discretion standard, giving substantial deference to the
761 F.2d at 1275 (emphasis added) (citations omitted). In this circuit, we will affirm a district court's "finding that normal investigative procedures [were] unlikely to be successful ... [as long as] there exist[ed] a factual predicate in the affidavit." Anderson, 542 F.2d at 431 (quoting United States v. Armocida, 515 F.2d 29, 38 (3rd Cir.1975)). See also In re DeMonte, 674 F.2d 1169, 1174 (7th Cir.1982).
To bolster the government's application for an authorized wire tap of the Zambrana phone, Agent Harris's affidavit filed with the district court explains the "necessity" for the surveillance:
Based upon this affidavit, and Agent Hildebrand's affidavit (substantially the same as Harris's), the district court held that the government's application met the requirements of § 2518(1)(c). The court ruled:
(Order of October 18, 1985, at 2). We agree with the district court that the information contained in the Harris and Hildebrand affidavits satisfies all of the elements of § 2518(1)(c) (even though, as explained previously, only one of the alternative elements must be established by the government) because:
(1) The affidavits explain "whether or not other investigative procedures have been tried and failed." 18 U.S.C. § 2518(1)(c). They state that normal investigative procedures have been successful only to a limited extent, but "appear unlikely to succeed in accomplishing the goals of identifying all co-conspirators at all levels of the narcotics conspiracy" (Harris affidavit ¶ 36). Although the government did not articulate the factual basis in detail for its representation that other investigative procedures had been attempted (except for a summary of its use of telephone pole records and pen registers), as explained below, we are convinced that because it is reasonably unlikely that other investigative procedures would secure the necessary information about the conspiracy, the lack of detail as challenged by the defendant about the other methods of investigation actually attempted by the government is not fatal;
(2) The affidavits detail why ordinary investigative procedures "reasonably appear to be unlikely to succeed if tried." 18 U.S.C. § 2518(1)(c). Of the numerous valid reasons furnished by the government, the fact that the Zambrana organization was a very closely knit family organization comprised exclusively of family members and trusted friends is most compelling. Because the participants in this conspiracy are one closely knit family unit, it is nigh onto impossible that an undercover agent could even hope to infiltrate "the top echelon of the closely run family organization," and the defendants have failed to present to us even one instance and/or case where this has been achieved. Similarly, relying on common sense and taking judicial notice of the clandestine and life-threatening manner in which a drug conspiracy operates, it is ridiculous to presume that the government could obtain witnesses
525 F.2d at 1130.
(3) The affidavits properly note that ordinary investigative procedures (such as infiltration by an undercover agent) would pose a high risk to the safety of a government agent or informant, and therefore "appear to be ... too dangerous." 18 U.S.C. § 2518(1)(c).
From our review of the record, we are satisfied that the government has complied with the statutory mandate contained in § 2518; we note further that no alternate plan of infiltration of the conspiracy has been advanced by the appellants that would have been likely to ascertain the details of the Zambrana operation as opposed to electronic wire surveillance.
Additionally, the defendants argue that the Harris and Hildebrand affidavits are unreliable because they are based on the hearsay declarations of an undisclosed government informant. Where, as in the instant case, a probable cause finding is based in part upon information provided through the use of confidential informants, the credibility and reliability of the informants must be demonstrated utilizing the "totality of the circumstances" test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See also United States v. Hornick, 815 F.2d 1156, 1158 (7th Cir.1987). Under this test, "[t]he task of the issuing [judge] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the [judge] had a `substantial basis for ... conclud[ing]' that probable cause existed." Illinois v. Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)).
Again, turning to the affidavits filed in support of the wire tap, Agent Harris testified that two confidential informants known as "CI-3" and "CI-4" had first-hand knowledge of the details of the Zambrana drug distribution operation. According to Harris's affidavit, Informant CI-3 provided her with information concerning Zambrana's distribution of narcotics.
There is no doubt that the informational tips from CI-3 and CI-4 were sufficient to establish probable cause under Illinois v. Gates, supra, since the government demonstrated that CI-3 had provided reliable information in the past, and since his reports were corroborated in part at the time CI-3 introduced Agent Harris to Foster Harris. (CI-3 stated that the drugs Foster Harris sold to Agent Harris came from the Zambrana operation). Since there is evidence in the record that independent police work corroborated CI-3's information, this case is similar to our recent decision in United States v. Hornick, 815 F.2d 1156 (7th Cir.1987), where we held that a police officer's gathering of evidence to
815 F.2d at 1158. As in the instant case, because the informant's report in Hornick was corroborated in part by the information gained through police officers' surveillance of the defendants, the court held that the informational tip from MPD 840 was sufficient to establish probable cause under Gates. In the case at bar, Agent Harris's independent corroboration of CI-3's statements demonstrates CI-3's reliability and, like the officer's corroboration of MPD 840's information in Hornick, establishes probable cause under the Gates test.
Finally, defendants argue that the affidavits filed in support of the government's application for a wire tap were unreliable because they were based upon the reports of an undisclosed informant whose reliability could not be tested in open court. Answering the same argument in Hornick, we stated:
815 F.2d at 1158 (emphasis added). A case decided two years ago clearly illustrates the need to maintain the confidentiality of government informants. In Ellsworth v. City of Racine, 774 F.2d 182, 183-84 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986):
In order to preserve the confidentiality of government informants and to protect their safety, the Supreme Court in Franks held that a hearing on the reliability of an informant is required only after the defendants have made a preliminary showing that a knowingly false statement was contained in the warrant affidavit. 438 U.S. at 171, 98 S.Ct. at 2684. The defendants' bald assertions that the informants' testimony was unreliable merely because the informants' identities were not revealed falls far short
The defendants next challenge the procedure that the trial court utilized in providing the jury with government-prepared, written transcripts of conversations between the various co-defendants translated from Spanish into English. The district judge allowed the jury to use the transcripts as an aid while listening to tape recordings only during the presentation of the testimony at trial but did not allow the transcripts to go to the jury room nor was the jury allowed to consider them as substantive evidence. During final instructions, the judge instructed the jury to resolve any discrepancies between the tapes and the transcripts in favor of the tapes, and that the names in the margins they had observed during trial were not to be considered as evidence of the identities of the speakers.
Defendants contend that (1) the English transcripts of the intercepted Spanish conversations provided the jury contain numerous inaccuracies; and (2) the transcripts should not have included the names of the purported speakers since the procedure used to identify some of the voices on the tapes was improperly suggestive. We consider each of these arguments in light of the well-established rule that "[c]ourts possess wide discretion in determining whether to permit the jury to use written transcripts as aids in listening to tape recordings." United States v. Keck, 773 F.2d 759, 766 (7th Cir.1985). See also United States v. Puerta Restrepo, 814 F.2d 1236, 1242 (7th Cir.1987). The defendants initially maintain that the transcripts inaccurately reproduce the substance of the phone conversations. However, the record reveals that they had ample opportunity to challenge and did in fact challenge each and every portion of the government-prepared transcript through the cross-examination of the government witnesses who testified as to the accuracy of the government's translation. In addition, in spite of the defendant's having had access to all the tapes six weeks prior to trial, having had the transcript for 12 days prior to trial, and having produced their own expert witness to testify as to the accuracy of the government's translation, the defendants failed to present an alternative translation. Because the defendants had ample opportunity to either challenge specific portions of the government's transcript or to prepare an alternate version, they cannot now be heard to complain on appeal when they themselves failed to present an alternative transcript. We agree with the reasoning of the Fifth Circuit in United States v. Llinas, 603 F.2d 506 (5th Cir.1979) where the defendants challenged on appeal the accuracy of transcripts containing an English translation of taped Spanish conversations. The court held that "`[o]nce we have concluded that the defendants could have challenged specific portions of the government's transcript or prepared an alternate version, it follows that they cannot be heard to complain on appeal because they failed to take advantage of their trial opportunity.'" 603 F.2d at 509 (quoting United States v. Wilson, 578 F.2d 67, 70 (5th Cir.1978)).
We agree with the procedure used in the Fifth and Eleventh Circuits for resolving
Llinas, 603 F.2d at 509-10. See also United States v. Rosenthal, 793 F.2d 1214, 1237 (11th Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1377, 94 L.Ed.2d 692 (1987). In our view, the Fifth Circuit's procedure for resolving challenges to the accuracy of a transcript provided to the jury is appropriate. The procedure encourages the production of a stipulated transcript; and if that fails, it leaves the opportunity for either side to present its version of the disputed portion of the transcript to the jury. This procedure is not only desirable, but we believe it is the obligation of well-prepared defense counsel to attempt to facilitate the presentation of evidence and to see that true justice is rendered by attempting to work out an agreed transcript when they question the accuracy of the government's version or fail to present their own translations. In the case at hand, while the defendants did in fact challenge the accuracy of the government's translation of the tapes, the record discloses that they neither attempted to work out an agreed transcript nor presented one of their own. Hence, the transcripts were properly provided to the jury as an aid while listening to the tape-recorded evidence.
The defendants next challenge the accuracy of the Spanish-to-English translation contained in the transcripts. During Zambrana's case-in-chief, the defendant presented the expert testimony of Maria Medina Seidner, manager of bilingual education for the State of Illinois' Board of Education, in an attempt to demonstrate to the jury the alleged inaccuracies in the translated transcripts. For instance, on direct examination, Ms. Seidner testified that there were translation errors in the government's transcript:
(Zambrana transcript at 461). Nevertheless, upon cross-examination, Ms. Seidner also verified that the government's translation of key phrases was in many instances often correct. An example is contained in this exchange:
(Zambrana transcript at 503). Despite Ms. Seidner's testimony on direct examination that some translation errors existed in the transcript, the two government expert witnesses testified that the translations were accurate, see supra, note 6, and our review of the record convinces us that the government's transcripts were sufficiently clear, accurate and intelligible to assist the jury in giving them a true picture of the criminal enterprise while listening to the taped Spanish conversations. In our view, a foreign language translation is sufficiently accurate to assist the jury if the translation reasonably conveys the intent or idea of the thought spoken.
Llinas, 603 F.2d at 508. Rather than excluding the use of transcripts containing translations of foreign languages to English, it is more properly the function of the finder-of-fact to weigh the evidence presented by the parties as to the accuracy of the proffered translation and to determine the reliability of the translation on the basis of that evidence. Cf. United States v. Torrez-Flores, 624 F.2d 776, 781 (7th Cir.1980) (reliability of a translator is an issue of credibility for the trier of fact to resolve); United States v. Cruz, 765 F.2d 1020, 1023 n. 4 (11th Cir.1985) (interpretation of a foreign language translation presents a jury question).
In the case at hand, the jury had the opportunity to listen to the tapes and determine the accuracy of the translations in the government-prepared transcripts in light of the thorough cross-examination and testimony of all the witnesses, including the testimony of those witnesses with expertise in language translation, dealing with the accuracy of those transcripts. Because the defendant had ample opportunity
Jesus Zambrana also asserts that the transcripts should not have listed the names of the purported speakers, alleging that the procedure to identify some of the voices was improperly suggestive. "Tape recordings are only admissible if the government can establish, by clear and convincing evidence, that the recordings are `true, accurate, and authentic recording[s] of the conversation[s], at given time[s], between the parties involved.'" United States v. Keck, 773 F.2d 759, 766 (7th Cir.1985) (quoting United States v. Faurote, 749 F.2d 40, 43 (7th Cir.1984)). Specifically, Jesus Zambrana claims that Agent McDaniel's identification of Zambrana's voice on the tape-recorded conversations was tainted when he viewed a transcript listing Jesus Zambrana as the speaker prior to listening to the first tape.
At cross-examination during the government's case-in-chief, McDaniel testified that when he identified Zambrana's voice on the first of approximately 30 tapes, he had viewed a transcript listing, in the margin of the pages, Jesus Zambrana as the speaker prior to listening to that tape:
(Zambrana transcript 319-20). On redirect examination, McDaniel emphasized that with respect to all but the first of approximately 30 tapes, he listened to the tapes before looking at the transcripts. Furthermore, McDaniel recounted under oath that he had not only spoken with Zambrana a number of times in person, but also 20 to 30 times over the telephone, and thus was very familiar with the characteristics (e.g., the tone, depth, pitch, inflections, and pauses, etc.) of Jesus Zambrana's voice. Based upon his statements that he was familiar with the traits of Zambrana's voice, he testified that there was no doubt in his mind that his identification of Jesus Zambrana
Because of Agent McDaniel's stated familiarity with Jesus Zambrana's voice characteristics, Agent McDaniel's identification of Jesus Zambrana is not susceptible to meaningful challenge even though he viewed a transcript listing the speaker's name in the margin before listening to the first of approximately 30 tapes. After a review of the record and testimony in this case, we are convinced that where Agent McDaniel: (1) followed a non-suggestive, neutral procedure for identifying the bulk of the tapes, and (2) demonstrated a true familiarity with the tone, quality, and inflections that distinguished Jesus Zambrana's voice based upon his recollection of past conversations with Zambrana, the mechanical problem involving the first tape does not constitute reversible error. As we stated in United States v. Faurote, "[t]he trial judge's ruling on the admissibility of the tape will not be overturned on appeal absent `extraordinary circumstances.'" 749 F.2d at 43. Moreover, because "[t]he trial judge [is] in the best position to weigh the credibility of the parties and the evidence presented," id. at 44, "the trial judge exercises broad discretion in determining whether [the government's] burden has been satisfied." Id. at 43. In light of Agent McDaniel's testimony that he could recognize the characteristics of Jesus Zambrana's voice and his positive identification of that voice on each of approximately 30 tapes, we agree with the trial judge's assessment that Agent McDaniel's testimony established "that the recordings are `true, accurate, and authentic recording[s] of the conversation[s], at given time[s], between the parties involved.'" Keck, 773 F.2d at 766 (quoting Faurote, 749 F.2d at 43). Considering the entire record, we hold that in the fact situation presented, no "extraordinary circumstances" exist to justify disturbing the trial judge's reception of the tapes in evidence.
Finally, the defendants maintain that the district court abused its discretion in permitting the jury to use the transcripts merely as an aid while listening to the tapes that contained the names of the purported speakers. Because the district court utilized the transcripts in substantially the same manner we approved in Keck, supra, and U.S. v. Papia, 560 F.2d 827, 844 (7th Cir.1977), their argument falls wide of the mark. In Keck, we stated that:
773 F.2d at 766. Likewise, the government in this case provided defense counsel with copies of the tapes for their perusal and review 12 days prior to trial. Further, as the court mandated in Keck, the district court neither allowed the reception of the transcripts into evidence nor allowed the jury to view or use them during its deliberations. Furthermore, the judge carefully and specifically instructed the jury that it could not consider the transcripts and the names of purported speakers listed therein as substantive evidence. See Keck, 773 F.2d at 766. Accordingly, as we held in Keck, we hold that "[t]hese factors, coupled with the fact that the identification of the speakers in the margins served to assist the jury in following the tape recordings, lead us to conclude that the court did not abuse its discretion in allowing the jury to use the transcripts." Id.
Defendants/appellants Jesus Zambrana and Charles Cole both claim that the government's failure to timely disclose exculpatory
To the extent Sanchez's statement might tend to establish that Jesus was not a "participant" in the conspiracy to deliver cocaine from Florida to Indiana with the intent to distribute, the statement is of some importance to his defense. In Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the court held that an individual demonstrated to be a participant in a conspiracy is liable for the substantive offenses committed by a co-conspirator during the course of the conspiracy. This court has stated that:
United States v. Covelli, 738 F.2d 847, 858 (7th Cir.), cert. denied, 469 U.S. 867, 105 S.Ct. 211, 83 L.Ed.2d 141 (1984) (quoting United States v. Sampol, 636 F.2d 621, 676 (D.C.Cir.1980) (emphasis added)). Because Sanchez's statement that he never dealt directly with Jesus when he bought and sold drugs is "material" to the issue of his participation in the conspiracy and thus the defendant's guilt, he was entitled to that statement under Brady.
The Supreme Court in Brady held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment...." 373 U.S. at 87, 83 S.Ct. at 1196-97. Nevertheless, our Circuit "has made it clear that `[t]here is nothing in Brady or Agurs to require that such disclosures be made before trial....'" United States v. Allain, 671 F.2d 248, 255 (7th Cir.1982) (quoting United States v. McPartlin, 595 F.2d 1321, 1346 (7th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1979)). See also Kompare v. Stein, 801 F.2d 883 (7th Cir.1986). In Allain, we stated:
671 F.2d at 255 (citation omitted) (quoting United States v. Ziperstein, 601 F.2d 281, 291 (7th Cir.1979), cert. denied, 444 U.S. 1031, 100 S.Ct. 701, 62 L.Ed.2d 667 (1980)). In this case, the government disclosed Sanchez's statement immediately prior to the commencement of trial and two days before Sanchez testified. Furthermore, Zambrana had three attorneys at his disposal, and his lead counsel vigorously cross-examined Sanchez about the subject matter of Sanchez's statement. Thus, any arguable delay by the prosecutor in disclosing Sanchez's statement was not troublesome and is of no consequence as it did not preclude counsel for the defense from making full use of the evidence during his cross-examination of Sanchez. Because the court record fails to reflect that the delay in disclosing the statement resulted in prejudice to Zambrana's defense, it did not prevent Zambrana from receiving a fair trial, and hence, does not amount to a violation of due process under Brady.
Defendant/appellant Charles Cole asserts that his Brady rights were trampled
The government argues that the defendant's concession that there is a lack of evidence in the record of government bad faith prevents the extension of the Brady rule to this case. This circuit, in an analogous situation, addressed the same issue. In United States v. Coe, 718 F.2d 830 (7th Cir.1983), the government's mishandling of a firearm led to the destruction of possible fingerprint evidence. The defendant argued that the Brady principle warranted the sanction of mistrial due to the government's alleged destruction or loss of potentially material evidence.
The defendant relied upon United States v. Bryant, 439 F.2d 642 (D.C.Cir.1971) where the court reasoned that Brady must apply to the loss of non-disclosed evidence of unknown content to prevent the government from circumventing the Brady guidelines by destroying evidence. 439 F.2d at 647-48. Coe rejected the defendant's argument, holding the Bryant analysis inapplicable on the ground that there was "at very least a hint of bad faith" on the officer's part in Bryant. 718 F.2d at 841. The court distinguished Bryant as follows:
718 F.2d at 841 (quoting Bryant, 439 F.2d at 647) (citations omitted). Coe concluded that because "there is no indication that the arresting officer who confiscated the gun was not acting in good faith or that he intended to destroy the potential fingerprint evidence," the sanction of mistrial was not warranted. Id.
In California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the Supreme Court agreed that the loss or destruction of evidence does not implicate the Due Process Clause of the Fourteenth Amendment absent "official animus" or a "conscious effort to suppress exculpatory
Id. 467 U.S. at 488-89, 104 S.Ct. at 2534. (Emphasis added).
In Trombetta, the defendants, charged with drunk driving, moved to suppress the results of an "Intoxilyzer" test used to determine a person's blood-alcohol content on the ground that police officers did not preserve their breath samples. Defendants asserted that they could have used the samples at trial to impeach the Intoxilyzer test results. The Supreme Court rejected the defendants' argument, holding that the police had not destroyed the breath samples "in a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny." Id. at 488, 104 S.Ct. at 2534. Additionally, the Court held that the destroyed evidence failed both prongs of the test of materiality since: (1) the general reliability of the test made it improbable that the breath samples would have been exculpatory; and (2) the defendants could have obtained comparable evidence (for example, the Court noted that data on possible sources of mechanical error could have been used to impeach the Intoxilyzer's reliability, and the defendants retained "the right to cross-examine the law enforcement officer who administered the Intoxilyzer test, and to attempt to raise doubts in the mind of the fact-finder whether the test was properly administered.") Id. at 490, 104 S.Ct. at 2534. See also Elmore v. Foltz, 768 F.2d 773 (6th Cir.1985).
Even assuming that Cole satisfied the Trombetta standard for materiality, the district court properly analyzed the evidence in light of the "bad faith" standard, and we agree with the court's conclusion that the record contains absolutely no evidence of "official animus" or a "conscious effort to suppress exculpatory evidence." Id. 467 U.S. at 488, 104 S.Ct. at 2533. In his argument before the district court on Cole's motion to dismiss the indictment (wherein Cole argued that the government's failure to preserve the potentially exculpatory evidence allegedly located in Cole's luggage warranted dismissal of the indictment), defense counsel admitted that he could not argue the existence of bad faith on the part of the government. Counsel for the defendant stated:
(Cole Tr. at 12) (emphasis added). Next, in its argument on Cole's motion to dismiss, the government stated that both Agent Harris and Lake County, Indiana, Police Officer Longfellow testified in their sworn affidavits that their search of the Oldsmobile shortly after Lonzo's arrest failed to reveal resumes or any other alleged exculpatory material, but that the vehicle contained luggage with items of clothing inside. Although the government readily admitted before the trial judge that the Lake County police inadvertently released the automobile on June 15, 1985, to one Daniel Blount, and upon being informed of the
The district court ruled as follows:
(Cole Tr. at 13) (emphasis added). Given defense counsel's admission that the release of the automobile was not the result of government bad faith and the government agents' sworn testimony that their search of the vehicle shortly after the defendant's apprehension failed to reveal that the alleged exculpatory evidence existed, we are persuaded that the district court's decision is not clearly erroneous. Although defense counsel asserts that the government was in control of the evidence and failed to preserve it properly, this alone is insufficient to establish bad faith. Our review of the record convinces us that there is absolutely no evidence that the government's regular procedures are inadequate, or that government agents intentionally destroyed evidence. Thus, the inadvertent release of the automobile and the possible destruction of alleged exculpatory evidence does not infringe upon Cole's due process rights under Brady.
Each of the defendants-appellants argue that the trial court erred in admitting the taped conversations between co-conspirators without requiring the government to offer substantial evidence independent of the statements themselves to link the defendants-appellants to the conspiracy. In each defendant's trial, the court admitted these conversations as substantive evidence under the so-called "co-conspirator exception" to the rule against hearsay testimony. Fed.R.Evid. 801(d)(2)(E). Under this rule, a statement is not hearsay if "the statement is offered against a party and is ... a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." Id.
The defendants argue that it was error for the district court to admit the tape-recorded conversations among the co-conspirators since the government failed to establish by a preponderance of evidence independent of the statements themselves that they were members of the conspiracy charged by the government. Their legal argument — that the defendants' membership in the conspiracy must be demonstrated through the introduction of independent evidence — finds support within this Circuit. The defendants cite the most important of these cases, United States v. Santiago, 582 F.2d 1128 (7th Cir.1978), which held that a hearsay statement is admissible under Rule 801(d)(2)(E) "only when the government has established by a preponderance of the evidence, independent of the statement itself, that (1) a conspiracy existed, (2) that defendants and the declarant were members of the conspiracy, and (3) that the statement was made in the course of the conspiracy." United States v. Xheka, 704 F.2d 974, 985 (7th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983). But once the conspiracy is established, "only slight evidence is required to link a defendant to it." United States v. Shoffner, 826 F.2d 619, 627 (7th Cir.), cert. denied sub nom. Strange v. United States, ___ U.S. ___, 108 S.Ct. 356, 98 L.Ed.2d 381 (1987) (quoting United States v. Garver, 809 F.2d 1291, 1295 (7th Cir.1987)).
315 U.S. at 74-75, 62 S.Ct. at 467 (citations omitted). Rejecting a per se rule precluding the use of hearsay statements when determining their admissibility, Bourjaily reasoned that the Federal Rules of Evidence superseded earlier cases such as Glasser:
107 S.Ct. at 2780.
Thus, the Court held: "it is sufficient for today to hold that a court, in making a preliminary factual determination under Rule 801(d)(2)(E), may examine the hearsay statements sought to be admitted. As we have held in other cases concerning admissibility determinations, the judge should receive the evidence and give it such weight as his judgment and experience counsel." 107 S.Ct. at 2782.
In rejecting a per se rule against considering these statements when ruling on their admissibility, the Court reasoned that presumptively unreliable hearsay may become probative if the statements are considered in light of other evidence in the case. Chief Justice Rehnquist, writing for the Court in Bourjaily, explained:
107 S.Ct. at 2781 (emphasis added). As the italicized segment of the above excerpt demonstrates, the heart of the Chief Justice's reasoning is that while "out-of-court statements are only presumed unreliable," they may nevertheless "become quite probative when corroborated by other evidence," Id. at 2781, and therefore may be considered along with the other evidence in ruling on the admissibility of the hearsay statement.
The facts of Bourjaily are instructive of the current test under Rule 801(d)(2)(E). In that case, the out-of-court statements of the petitioner-defendant indicated that one Lenardo (an alleged co-conspirator) was involved in a conspiracy with a "friend." The statements indicated that the friend had agreed with Lenardo to buy a kilogram of cocaine and to distribute it. His statements also revealed that the friend would be at the hotel parking lot, in his car, and would accept the cocaine from a government informant's (Greathouse) car, after Greathouse gave Lenardo the keys. The Supreme Court noted that each one of Lenardo's statements may have been unreliable, but taken as a whole, the entire conversation between Lenardo and Greathouse was corroborated by independent evidence. The friend, who turned out to be the petitioner, showed up at the prearranged spot at the prearranged time. He picked up the cocaine and a significant sum of money was found in his car. Based upon these facts, the trial court concluded (correctly in the Supreme Court's view) that the government had established the existence of the conspiracy and the petitioner's participation in it, and that the court properly admitted the challenged statements under Rule 801(d)(2)(E).
As in Bourjaily, evidence other than the hearsay statements themselves substantiate the statements proffered against the co-conspirators. For instance, in a taped conversation on April 20, 1985, between Jay Zambrana and co-defendant Antonio Dominguez, Jay told Dominguez that the car was available and that it was ready to leave with "the two who went the last time, the two black guys" (allegedly Lonzo and the defendant-appellant Charles Cole). Dominguez stated that the paint was "soft" and "metallic," apparently referring to the quality of the cocaine to be shipped to the Zambranas in Indiana. Thereafter several telephone conversations between Zambrana, Jay, Dominguez, and co-defendant Roberto Rodriguez on April 21, 1985, were intercepted concerning whether the "boys" had left and why they were delayed in their arrival. Zambrana informed Dominguez in cryptic language: "The plane flight is a bit late because it seems the road was messed up" and "They told me they lost about three or four hours." The government argued that these phrases pertained to Lonzo and Cole's delay in delivering the cocaine to the Zambrana residence.
At trial, the government also introduced taped conversations that had taken place on April 22, 1985, between Jesus Zambrana and co-defendant Dominguez three days before Lonzo's car was stopped by the Lake County police on I-65. In that conversation, Dominguez stated that Lonzo and Cole were lost about 45 minutes from where they were to meet Dominguez in Miami Beach. Dominguez arranged for a three-way conversation, and Zambrana gave Cole and Lonzo directions to Miami Beach. The following day, Dominguez called Jesus and told him that he had found a car with the "prettiest metallic paint" he had ever seen but that the price had gone up and consequently, Zambrana had to go up in price "$1.00 per car." The government argued at trial that this expression was used by the co-conspirators to refer to the quality and price of the drugs.
On April 25, 1985, at 3:10 p.m., Dominguez informed Jay that he had sent his "six uncles" and "had placed a note in one of his uncle's pockets," which the government asserted alluded to the six bags of cocaine recovered from the vehicle driven by Lonzo from Florida later on the 25th, as well as a note recovered from one of the bags. Shortly thereafter, at 6:33 p.m., Lonzo called the Zambrana residence seeking Jay to inform him that they "were ten miles
Because these conversations, which implicated the defendants-appellants in the drug operation, were corroborated by independent evidence — the seizure of cocaine contained in Lonzo's automobile immediately following the April 25 conversations — the trial court was permitted to consider the content of the statements, along with other evidence in the case, in determining each defendant's participation in the conspiracy. In U.S. v. Xheka, 704 F.2d at 988-89, we explained that a defendant's:
(Citations omitted). We are convinced that the government established, by a preponderance of the direct and circumstantial evidence, including but not limited to the hearsay declarations themselves, each defendant's participation in the conspiracy. First, the content of the telephone conversations between Jesus and Jay Zambrana and the other co-conspirators provided direct evidence tying them to the attempted delivery of cocaine on April 25. Although the word "cocaine" was never referred to in any of the conversations, the trial judge could properly have accepted the government's contention that phrases such as "metallic paint" were used as code words to allude to the illegal drugs. And as mentioned previously, this interpretation of the conversations was verified by the April 25 seizure of cocaine contained in Lonzo's automobile. The evidence thus permits the conclusion that the Zambrana family made several telephone calls to Dominguez's phone in Miami to organize trips to purchase and pick up cocaine. Secondly, the evidence, including but not limited to the taped conversations, was also sufficient to demonstrate Cole's participation in the conspiracy. While Cole's mere association with the other conspirators is insufficient in itself to establish that he knowingly participated in the illegal purpose of the trip from Florida to Indiana, Covelli, 738 F.2d at 861, the circumstances surrounding the defendant's actions support such an inference. "Presence has been sufficient evidence of knowing participation in a conspiracy when there were suspicious circumstances, and the existence of the conspiracy was already established." Id. Not only was Cole present during the entire process of picking up and delivering the cocaine, but Cole was also present when Lonzo telephoned Jay to receive directions as to where to pick up the cocaine from Dominguez. Furthermore, the trial judge could properly consider the implausibility of Cole's own testimony that: (1) he could not remember the names of any persons he talked to in Florida about locating a job; (2) he could not remember the name of any one business where he had allegedly left his resume; (3) he didn't know which cities they were going to or where or how long they would stay; and (4) Lonzo asked Cole to go to Florida with him only about two hours before they actually departed. In sum, the content of the taped phone conversations, the circumstances of the pickup and delivery of the cocaine, and the implausibility of Cole's testimony, establish a sufficient basis for the trial judge's finding that Cole and the other defendants were knowing participants in the conspiracy.
In reaching our decision affirming the trial court, we note that all too often, as we are seeing in this case, the defense counsel takes a buckshot approach, hoping a pellet will strike. But the Supreme Court has "repeatedly stated, `the Constitution entitles a criminal defendant to a fair trial, not a perfect one.'" Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460 (1986) (quoting Delaware v. VanArsdall, 475 U.S. 673, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986)). Our review of the record makes it eminently clear that each of the defendants received the fair trial to which he is entitled under the Constitution.
Victoria Funes, who has been certified to interpret the Spanish language in U.S. courts pursuant to 28 U.S.C. § 1827, was also certified by the trial court as an expert witness. She testified that in her opinion, the government transcripts contain accurate verbatim translations of the taped Spanish conversations introduced during each of the defendants' trials.
The record is barren of evidence that the government refused to honor the terms of this letter.
U.S.Code Cong. & Ad.News 1968, pp. 2112, 2190. See Costello, 610 F.Supp. at 1465.
Additionally, defendants-appellants argue that the trial court erred in admitting into evidence testimony from Donald R. McDaniel that on three occasions prior to the time set forth in the indictment, Zambrana provided McDaniel with cocaine. McDaniel's testimony was admitted pursuant to Fed.R.Evid. 404(b). Although evidence of "other bad acts" on the defendant's part are not admissible to demonstrate the defendant's propensity to commit the offense charged, defendant's prior cocaine sales are relevant to the issue of his intent to distribute cocaine, U.S. v. Shackleford, 738 F.2d 776, 781 (7th Cir.1984), and are therefore admissible under Rule 404(b).