COFFEY, Circuit Judge.
Concepcion Carrasco and Francisco Diaz appeal their convictions following a trial to the court for conspiring to sell and selling counterfeit alien registry cards and social security cards in violation of 18 U.S.C. §§ 371 and 1426(b) and 42 U.S.C. § 408(g)(3). We affirm.
The Immigration and Naturalization Service ("INS") received information that an individual, later identified as Concepcion Carrasco, was selling counterfeit documents. On October 12, 1986, the INS requested a confidential informant, Guillermo Herrera, to purchase false alien registry cards
The first conversation between Herrera and a defendant involving arrangements for the purchase of counterfeit documents took place on October 12, 1986, when Herrera and another individual met with the defendant Carrasco outside of Carrasco's home on Noble Street in Chicago, Illinois. During the meeting Herrera and Carrasco explored the possibility of Herrera purchasing a green (alien registration) card from Carrasco for a friend from Mexico. The following recorded conversation transpired:
Carrasco gave Herrera his telephone number before Herrera stated he would need a "mica" and a social security card. Herrera also told Carrasco that he would call to ascertain whether Carrasco had been able to arrange something and would inform Carrasco in the event he was able to secure a different supplier for the false documents. Carrasco quoted Herrera the prices of a "mica" at $50 and a social security card at $20.
On November 3, 1986, Herrera again met with Carrasco outside Carrasco's Noble Street residence. The conversation began:
Carrasco asserts that these statements reflect his desire to back out of the transactions with Herrera, while the government contends that they reflect only Carrasco's reaction to the cold weather. Herrera went on to tell Carrasco that he had been attempting to reach Carrasco by telephone. Herrera at this time reiterated his desire to purchase the alien registry and social security cards. Carrasco queried Herrera asking whether Herrera had brought the necessary data and photos for the false documents. After Herrera responded affirmatively, Carrasco stated that it would be impossible for the registry and social security cards to be produced that day, but told Herrera to call him Wednesday (two days later). Herrera informed Carrasco that: "[T]his guy is after me, you see? He says, `Hurry up, hurry up,' right?" Three days later, on November 6, 1986, Herrera received the cards from Carrasco in exchange for $70 ($50 for the "mica" and $20 for the social security card). Herrera stated that he would contact Carrasco "as soon as I need something," and Carrasco asked Herrera not to say anything over the telephone other than that Herrera was coming to see Carrasco at a particular time. Carrasco obviously was attempting to protect himself from any incriminating statements made during a possible wiretapped conversation.
Some two months later, on January 5, 1987, Herrera once more met with Carrasco and ordered another "mica" for one, "Juan Ortega Patino." Herrera told Carrasco of the pressure he was under to secure the
On February 5, 1987, Herrera again met with Carrasco at Carrasco's new home on Ohio Street in Chicago, Illinois, and ordered another "mica" and social security card. Carrasco testified that he never informed Herrera of his new address and had no idea how Herrera found him. Carrasco said that he would see if he could have the documents three days later. Having no phone, Carrasco suggested to Herrera that he call at the old Noble Street house and leave his name. Carrasco gave these additional directions:
Arrangements were made for Herrera to call on Monday (February 9).
On February 9, 1987, Herrera spoke with an individual who identified himself as "Pancho." Pancho informed Herrera that Carrasco had told him that the order would be ready the next day. In a subsequent phone call that same day, Herrera told Pancho that he would be unable to come on Tuesday (February 10), but could be there Wednesday (February 11) at 6 o'clock. On February 11 Herrera had several telephone conversations with Pancho, but was unable either to speak with Carrasco or obtain the desired documents. Pancho said he would determine if Carrasco was at Carrasco's residence. In his final February 11 call, Herrera told an unidentified individual that he would call the next day. In a February 12, 1987, telephone conversation, Pancho informed Herrera that the order was ready, and Herrera replied that he would come over. Herrera then met with Pancho at the Noble Street apartment, picked up the false documents and the following conversation ensued:
After Herrera gave Pancho the $60, Pancho delivered the green card and the social security card. Herrera testified that the documents were unwrapped when they were delivered, as contrasted with Carrasco's testimony that they were wrapped. The court resolved this conflict in favor of Herrera.
On February 23, 1987, Herrera met with Carrasco outside Carrasco's Ohio Street house to arrange for the purchase of another social security card. In making arrangements for the delivery of the document, Carrasco again directed Herrera to speak with the people living at the Noble Street residence:
The parties agreed that the purchase price would be $20, that the name on the card would be "Rafael Alvarez" and that the delivery would take place at the Noble Street house. During the conversation, Carrasco also told Herrera how he might save money if he purchased blank social security cards wholesale and made up the social security cards himself.
On March 2, 1987, Herrera telephoned "Pancho" and during the conversation Pancho informed Herrera that the item Carrasco was to drop off for Herrera had arrived. When Herrera arrived at the Noble Street house to pick up the items, he met an unidentified woman who inquired asking, was he there "about a social security?" Herrera replied he was, paid the woman $20 for the social security card and asked the woman if Pancho's last name was Carrasco. She stated that it was Diaz.
Carrasco testified that the money he received from these transactions was delivered to one Pedro Monarrez, who made the documents. Carrasco said that Monarrez offered to provide the necessary work documents for anyone Carrasco knew who needed them. Carrasco testified that he knew that the sale of counterfeit "micas" and social security cards was illegal. He further testified that he went through with the transactions because "Herrera told him that he needed [the documents] for a person who was not able to find work." Carrasco further testified that, "I wasn't doing it to make money for myself or to make any profit for myself because that was not my business."
A. Carrasco's Arrest
On July 10, 1987, a grand jury returned indictments against Carrasco and Diaz for conspiring to sell and selling counterfeit alien registry and social security cards. On July 30, 1987, INS Agent Bruce Kading arrested Carrasco and informed Carrasco that he was "charged" with selling counterfeit immigration and social security documents. In relaying this information to Carrasco, Kading used the Spanish word "acusado," as a translation for "indicted." Carrasco testified that Kading told him that he was being arrested "because [Kading] was investigating some phony documents," to which he replied that he had a lawyer and had applied for amnesty. While Carrasco was being transported to the INS office, in Kading's automobile, Kading advised Carrasco of his Miranda rights in Spanish rather than English. After arriving at the INS office, Kading again orally advised Carrasco of his rights, utilizing a printed Spanish language form. Carrasco stated that at times he was unable to understand Kading's Spanish very well and specifically did not recall Kading speaking to him about a lawyer. He acknowledged that Kading had on two different occasions told him that anything he said could be used against him in a court of law and on one occasion that if he decided to answer questions without a lawyer he could stop
B. Tape Recording, Duplication, Transcription and Identification Procedures
1. Tape Recording and Duplication Procedures
The tape recordings of the false document transactions were produced under the supervision of INS Agent Bruce Kading. Telephone conversations were recorded by means of an induction coil connecting the earpiece of the telephone to the microphone jack of the tape recorder. Before each conversation Kading tested the recorder by replaying a portion of the preamble he had dictated on the tape. Kading then placed the telephone calls to Carrasco and Diaz and monitored the conversations. Following the recording of each conversation, Kading played back a part of the taped conversation to ascertain if, in fact, a recording had taken place. Kading then removed each tape and personally transferred the tape to a locked cabinet to which only he had access.
The conversations were recorded through the use of a tape recorder that Kading placed on the body of Herrera.
After Kading prepared the duplicate tapes, the original tapes were transferred to the prosecutions officer for safekeeping in the INS locked evidence room,
2. Transcription and Translation Procedures
Initially Mendez prepared the English and then the Spanish transcripts of the Spanish conversations involved in this case.
3. Identification Procedures
Herrera testified that he was one of the participants in all the tape recorded conversations admitted in evidence and that each of the tapes and Spanish transcripts accurately reflected the conversations that had transpired in his presence.
Other evidence was offered to identify Francisco Diaz as a participant in the taped conversations and transactions. For example, the record reflected that Agent Kading placed telephone calls to "Pancho" at a telephone number to which Jose Diaz subscribed at the address on Noble Street where Diaz was arrested.
ADMISSION OF TAPES AND TRANSCRIPTS
A. Admission of Tapes
Carrasco and Diaz object to the admission of all of the tape recordings introduced in evidence on the grounds that the duplicate recordings received in evidence were neither true nor accurate recordings of the involved conversations and that both defendants' voices on the tapes were neither properly identified nor authenticated. In United States v. Alvarez, 860 F.2d 801, 807 (7th Cir.1988), we recently set forth the analysis to be applied in our review of a trial court's decision on the admission of tape recordings:
(Citations omitted). In addition:
1. True and Accurate Recordings
The defendants challenge the truth and accuracy of the tape recordings involved, arguing that the government failed to establish that the tapes were true and accurate recordings of the conversations that had occurred at the particular time in question, also that the tapes were "duplicates" and not the original tape recordings.
Federal Rule of Evidence 1001(4) defines a "duplicate" in the following manner:
(Emphasis added). Federal Rule of Evidence 1003 provides that:
In the case of either an original or a duplicate tape the government may establish a foundation for accuracy and truth of the tape through "evidence of chain of custody and by the correspondence between the tape's version of the events ... and the recollections of eyewitnesses to those events; in this circuit, either variety of evidence can establish a tape's foundation." United States v. Blakey, 607 F.2d 779, 787 (7th Cir.1979).
As in Alvarez, we next proceed to review the trial court's resolution of the issue of "the authenticity of the speakers' voices on the tapes." Alvarez, 860 F.2d at 808. As we observed in Alvarez:
860 F.2d at 808-09.
Under these standards, we hold that Carrasco's voice was properly identified and authenticated, as Guillermo Herrera, a party to each of the recorded conversations containing Carrasco's voice, identified Carrasco at trial as the person with whom he met and knew as "Chon." Thereafter he testified that each of the tapes involving Carrasco accurately depicted the contents of the conversations between Carrasco and himself.
Because Herrera had only one fleeting face-to-face contact with Diaz, that took place during the nighttime, he stated he was unable to provide a definitive incourt identification of Diaz. Herrera was able to testify that the tapes allegedly involving Diaz accurately depicted the contents of the phone conversations he had with an individual known to him only as
Circumstantial evidence is also useful in establishing voice identification. As we observed in United States v. Grier, 866 F.2d 908, 920-21 (7th Cir.1989):
Several items of circumstantial evidence aid in the identification of Diaz as a party to the taped conversations. First, telephone calls to "Pancho" were placed to a telephone number at the Noble Street address where Diaz was arrested. This telephone was subscribed in the name of Jose Diaz, Francisco's brother, and was the phone number given Herrera by Carrasco where Herrera could make contact with "Pancho." Moreover, the Noble Street address was the location where "Pancho" had delivered false documents to Herrera. In addition, the person answering the telephone in these conversations when asked if he was "Pancho" answered, in effect, identifying himself as Pancho. Further, the unidentified woman who delivered the false social security card to Herrera stated that Pancho's last name was Diaz. Finally, INS Interpreter Mendez testified that "Pancho" is a common nickname for the Spanish name "Francisco," Diaz' given name. This circumstantial identification evidence, when considered together with the direct identification evidence previously discussed, certainly lends ample credence to the district court's exercise of its discretion in concluding that the government had convincingly identified Diaz as a speaker on each of the tapes of the conversations between Herrera and the person he knew as "Pancho."
We are of the opinion that the trial court did indeed properly conclude that the government met its burden of establishing, through clear and convincing evidence, "that the recordings [were] `true, accurate and authentic recording[s] of the conversation[s], at given time[s], between the parties involved,'" Keck, 773 F.2d at 759 (quoting Faurote, 749 F.2d at 43).
B. Admission of Transcripts
The defendants also challenge the district court's admission of the transcripts of
We now turn to the defendants' challenge to the accuracy of the transcripts. The defendants argue that the corrections in the transcripts cast doubt upon the transcripts' accuracy. For example, the defendants assert that those familiar with the conversations (i.e., Herrera or Kading) never compared the various versions of the transcripts prepared during the revision process, that Herrera never compared the Spanish transcripts to the English transcripts, and that changes were made in the transcripts after the date Eloise Mendez certified to the accuracy of the transcripts. The reasoning contained in United States v. Zambrana, 841 F.2d. 1320 (7th Cir.1988), is applicable to these objections. There we observed:
841 F.2d at 1335. We went on to note:
The defendants extensively cross-examined the government witnesses testifying as to the accuracy of the government's translation. Moreover, it is unclear from the defendants' appeal papers which particular aspects of the transcripts the defendants claim are inaccurate. During their cross-examination of Mendez, the defendants pointed to certain minor changes in translations contained in different drafts of the
The defendants also claim that the attribution of voices in the transcripts was the result of an impermissibly suggestive identification process.
Application of the law set forth in Alvarez to the facts herein reveals that the procedures utilized in identifying the speakers in these transcripts were not suggestive. In Alvarez we determined that the "corruptive effect of the suggestive identification" was to be weighed against factors relevant to the question of likelihood of misidentification, including "`the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.'" Alvarez, 860 F.2d at 810 (quoting Little, 819 F.2d at 1433, which quoted, in turn, Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972)). In the case before us the person who identified voices on the transcript during the course of transcript preparation was Guillermo Herrera, an eyewitness and active participant in each and every one of the conversations involved. Because Mendez merely distinguished between the voices of different speakers and identified only the voice of Herrera, an active participant in the conversation and the individual who ultimately supplied the positive identification of each voice, it is difficult to imagine how these transcripts could be suggestive.
SUFFICIENCY OF THE EVIDENCE
Diaz contends that the evidence presented was insufficient to convict him of conspiring to sell and selling counterfeit alien registry cards and social security cards in violation of 18 U.S.C. §§ 371 and 1426(b) and 42 U.S.C. § 408(g)(3).
"In evaluating [Diaz'] sufficiency of the evidence challenge, we note that [he] bears a heavy burden. Initially, we `review all the evidence and all the reasonable inferences that can be drawn from the evidence in the light most favorable to the government.'" United States v. Nesbitt, 852 F.2d 1502, 1509 (7th Cir.1988) (quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984)). "The test is whether after viewing the evidence in the light most favorable to the government, `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Pritchard, 745 F.2d at 1122 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)).
United States v. Vega, 860 F.2d 779, 793 (7th Cir.1988). "This [evidentiary standard] includes, in conspiracy cases, circumstantial as well as direct evidence." United States v. Williams, 858 F.2d 1218, 1221 (7th Cir.1988).
"A conspiracy is a `combination or confederation between two or more persons formed for the purpose of committing, by their joint efforts, a criminal act.'" United States v. Herrera, 757 F.2d 144, 149 (7th Cir.1985) (quoting United States v. Mayo, 721 F.2d 1084, 1088 (7th Cir.1983)). As we observed in United States v. Xheka, 704 F.2d 974, 988-89 (7th Cir.1983):
"Circumstantial evidence may appropriately be utilized to demonstrate both a conspiracy and the defendant's participation in the conspiracy." Vega, 860 F.2d at 793. "Because conspiracies are carried out in secret, direct proof of agreement is rare." United States v. Koenig, 856 F.2d 843, 854 (7th Cir.1988) (citations omitted). As we observed in Grier, 866 F.2d at 923:
In weighing both direct and circumstantial evidence
Nesbitt, 852 F.2d at 1511. Not only do we recognize the trier of fact's general knowledge
Vega, 860 F.2d at 794.
Diaz argues initially that there was no evidence that a conspiracy existed between Carrasco and anyone else prior to the February 1987 date on which the government alleges that Diaz joined the conspiracy. In support of his position, Diaz asserts that the government's contention that a conspiracy existed between Carrasco and the manufacturer of the documents delivered to Herrera prior to February 1987 cannot be accepted. In recorded conversations between Carrasco and Herrera on October 12, 1986, January 12, 1987, and January 14, 1987, Carrasco made clear that the counterfeit identification documents Carrasco sold prior to February 1987 were made by someone other than himself. Similarly, in Carrasco's direct testimony he identified Pedro Monarrez as the documents' manufacturer. Thus, we are convinced that there was more than sufficient evidence in the record for the judge to conclude that Carrasco conspired with others prior to February 1987, irrespective of whether the government identified a particular individual as the manufacturer of the documents. See generally, Rogers v. United States, 340 U.S. 367, 375, 71 S.Ct. 438, 443, 95 L.Ed. 344 (1951) ("Of course, at least two persons are required to constitute a conspiracy, but the identity of the other members of the conspiracy is not needed, inasmuch as one person can be convicted of conspiring with persons whose names are unknown") (footnote omitted).
Diaz next argues that the evidence remained insufficient to establish that a conspiracy existed prior to February 1987, because the government failed to demonstrate that the relationship between Carrasco and the documents' manufacturer prior to this date was anything more than that of a buyer and seller.
We are convinced that the record contains a plethora of facts and circumstances relevant to the character of the relationship between Carrasco and his document supplier being more than that of a buyer and seller. In the recorded conversations of October 12, 1986, November 3, 1986, January 5, 1987, and February 5, 1987, between Carrasco and Herrera, arrangements were made for Carrasco to purchase false social security and alien registry cards from his supplier for resale to Herrera. Pursuant to the arrangements, a person or persons other than Carrasco manufactured and/or printed a "mica" and social security card and delivered them to Herrera on November 6, 1986, delivered a "mica" to Herrera on January 14, 1987, and delivered a "mica" and social security card to Herrera on February 12, 1987. Carrasco's supplier(s), thus, delivered and received payment for printed false documents containing names identifying a person other than the individual they knew as Carrasco. In doing so they should have known, in the exercise of common sense and, thus, "must have known" that they were involved in an agreement leading to the resale and/or transfer of those documents to individuals other than Carrasco. As we have previously noted, "[if] the facts indicate that the defendant must have known something ... then a [trier of fact] may be able to find beyond a reasonable doubt that he did know it, especially since the requirement of knowledge is satisfied by proof that the defendant willfully shut his eyes for fear
Although "[o]ur cases make clear that merely purchasing drugs or other property from a conspiracy, standing alone, can never establish membership in the conspiracy," United States v. Douglas, 818 F.2d 1317, 1321 (7th Cir.1987), "one who buys from a conspirator for resale is a member of the conspiracy if he knows at least its general aims...." United States v. Marks, 816 F.2d 1207, 1212 (7th Cir.1987). But, Diaz asserts that Marks cannot be utilized to find a conspiracy in a case in which a conspiracy has not yet been formed and in which the purchase for resale provides the sole basis upon which a conspiracy is found. Furthermore, Diaz argues that Marks should not be applied to a case in which the trier of fact is basically concerned with whether the seller, rather than the buyer, has become part of a conspiracy.
In response to Diaz' assertions, we have previously noted: "Circumstantial evidence may appropriately be utilized to demonstrate both a conspiracy and the defendant's participation in the conspiracy." Vega, 860 F.2d at 793. Furthermore, "the evidence `"need not exclude every reasonable hypothesis of innocence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt."'" Koenig, 856 F.2d at 854 (quoting United States v. Radtke, 799 F.2d 298, 302 (7th Cir.1986) (that quoted, in turn, United States v. Thornley, 707 F.2d 622 (1st Cir.1983)). Certainly, the same evidence of Carrasco's purchase of a number of false documents for resale and his supplier(s)' necessary knowledge of the contemplated resale recounted above, reflects the supplier(s)' knowledge of the conspiracy's general aims. There is no logical reason why this evidence, which would clearly be applicable to demonstrate a knowing agreement to join a pre-existing conspiracy, also should not be applied to demonstrate the nature of the agreement required to establish a criminal conspiracy. In addition, because the central question in this matter is whether either party knowingly agreed to form or join a conspiracy, a seller's sale to a buyer contemplating resale, when the seller is aware of the aim of the conspiracy to transfer, sell or barter false documents ("micas" and social security cards), is equally as probative of a conspiracy as a buyer's purchase with such awareness.
Carrasco's purchase of counterfeit alien registry and social security cards for resale to Herrera set forth in the taped conversations between Carrasco and Herrera and the transactions that took place pursuant to the plans recounted in the taped conversations, established the general aim of the conspiracy between Carrasco and his supplier(s) as the resale of false documents. The tape recorded meetings between Carrasco and Herrera involved arranging for false document purchases at a later date, supplying of data from Herrera to Carrasco, and actual false document purchases. The evidence that Carrasco's suppliers received payment from Carrasco for false documents that contained names identifying a person other than Carrasco further establishes that Carrasco's supplier(s), as well as Carrasco, were aware of this general aim. Thus, the evidence was sufficient for the trier of fact to conclude that Carrasco and his supplier(s) were knowingly and actively involved in a conspiracy to distribute false social security and alien registry cards prior to February 1987.
Diaz next contends that even if a conspiracy existed between Carrasco and his supplier(s) before the February 1987 time period in which the government alleges he joined the conspiracy, the evidence remained insufficient to support a finding that Diaz joined the conspiracy at that time. Diaz asserts that the record does not support findings either that he was the individual known as "Pancho," alleged to have been involved in the conspiracy or that he knowingly joined the conspiracy.
We have previously discussed the question of the evidence identifying Francisco Diaz as "Pancho" in the context of the admission of the taped voice recordings. As we noted, two witnesses, Agent Kading and Diaz' co-employee, Libia Ospina, directly
This direct evidence identifying Diaz as "Pancho" was supplemented by circumstantial evidence. For example, Carrasco directed Herrera to leave telephone messages for "Pancho," whom he also called "Francisco," at a telephone number subscribed in the name of Diaz' brother, Jose, at the house where Francisco Diaz was arrested. The record further reflects that the calls Herrera made to "Pancho" were directed to this telephone number.
The very timing and sequence of the transactions recounted in the record are also relevant to the identification of Diaz as "Pancho." On February 11 and 12, 1987, Herrera made calls in which he asked for and spoke with a person known as "Pancho." In a February 12 call, "Pancho" and Herrera agreed to a meeting that evening in which Herrera stated that he would obtain his "order." Within approximately ½ hour of the telephone call, Herrera went to the Noble street house where Diaz was arrested, met with "Pancho," and paid $60.00 for the false alien registry and the false social security cards. Thus, the recorded conversation with an individual responding to the name "Pancho" at the telephone number listed to Diaz' brother led to the delivery of the documents at the house where Diaz was apprehended.
A February 23, 1987, conversation between Herrera and Carrasco likewise was relevant to the identification of Francisco Diaz as the individual who sold the documents to Herrera on February 12. In the course of arranging a new false document transaction, Carrasco once again requested that Herrera telephone the same residence and ask for "Pancho" or "Francisco." Further, he stated that the persons living at that address were his brothers-in-law.
Diaz' identification as "Pancho" was further confirmed in a later counterfeit document transaction. On March 2, Herrera spoke with a person identified as "Pancho" at Diaz' phone number and arranged to pick up the materials Carrasco was to leave for him at Pancho's residence. Approximately 45 minutes after this conversation, Herrera went to "Pancho's" house, where he met a woman who inquired whether he was there "about a social security," and upon his affirmative response, delivered the card to him for $20.00. Herrera asked the woman if "Pancho's" last name was Carrasco, and was told that it was "Diaz."
The evidence of timing and sequence of events outlined in the preceding three paragraphs established that Carrasco directed Herrera to speak with a person known as either "Pancho" or "Francisco," and that Herrera's telephone calls to "Pancho" were made to a phone number located at the house where Diaz was arrested. This series of events also demonstrates that Francisco Diaz' voice was directly identified by Agent Kading and Libia Ospina as that of "Pancho" on taped telephone conversations and that "Pancho's" February 12 document delivery to Herrera followed arrangements that had previously been made in phone calls placed to Diaz' number. The record further established that Carrasco impliedly agreed with Herrera's description of the "Pancho" who delivered the documents on February 12, and that the March 2 delivery, that took place after another call to Diaz' telephone number, included a statement of the woman delivering the documents that "Pancho's" last name was Diaz. All these facts, taken together, clearly provided a basis for a reasonable factfinder to conclude that Francisco Diaz was "Pancho."
In determining whether Diaz knowingly joined the conspiracy, initially we note that Diaz was involved in repeated recorded telephone conversations with Herrera concerning the details of the delivery of false documents to Herrera. Secondly, during these telephone conversations Diaz referred to prior contacts he had with Carrasco concerning these transactions, from which a factfinder could very easily and properly infer communication between Carrasco and Diaz regarding the items Diaz was to deliver. Thirdly, a reasonable factfinder, relying on the evidence in the record, could not help but find that Diaz delivered a social security card and an alien registry card in return for money on February 12, 1987. Certainly, one knowingly participating in the personal delivery of fraudulent copies of government social security and alien registry cards in return for cash should and obviously would be placed on notice of the objective of the conspiracy. In addition, immediately following a recorded telephone call in which Diaz arranged for the delivery of a social security card to Herrera, Herrera went to see a woman who handed over the fraudulent social security card after asking if Herrera was there about a "social security." From these factual circumstances the trier of fact could reasonably infer that Diaz had informed the woman of the nature of and arranged for the delivery of the documents about to be exchanged for cash. We have previously observed that: "A conspiracy is an agreement; and to be a party to an agreement you must know something of its general scope and objective though not necessarily its details." United States v. Cerro, 775 F.2d 908, 911 (7th Cir.1985). Furthermore, as noted earlier in this decision, "[If] the facts indicate that the defendant must have known something ... then a [trier of fact] may be able to find beyond a reasonable doubt that he did know, especially since the requirement of knowledge is satisfied by proof that the defendant willfully shut his eyes for fear of what he might see if he opened them." United States v. Josefik, 753 F.2d 585, 589 (7th Cir.1985)." Cerro, 775 F.2d at 911. When considering the totality of the evidence in the record, both direct and circumstantial, a reasonable factfinder could clearly conclude that Diaz knew the conspiracy's "general scope and objective," Cerro, 775 F.2d at 911, in that Diaz clearly knew of the general scope and objective of Carrasco's conspiracy to sell false alien registry and social security cards.
In sum, the evidence presented in this case contains facts sufficient to support inferences that a conspiracy existed between Carrasco and his supplier prior to February 1987, that Diaz was the individual Herrera knew as "Pancho," and that Diaz knowingly and willingly joined and participated in Carrasco's conspiracy. Based upon these facts a factfinder "exercising well-reasoned judgment could very well conclude that the inculpatory inferences outweigh the exculpatory inferences that could be drawn from the evidence beyond a reasonable doubt," Nesbitt, 852 F.2d at 1511, and have found that Diaz knowingly joined with Carrasco and his supplier in the conspiracy.
ADMISSIBILITY OF EVIDENCE
Diaz asserts that the district court erred in admitting a number of evidentiary items.
Initially, Diaz contends that the coconspirator hearsay exception does not support the trial court's admission of three tape recorded conversations. Two of the taped conversations took place between Carrasco and Herrera on February 5 and 23, 1987, respectively, and the other recorded conversation occurred between Herrera and the unidentified woman who delivered a social security card to Herrera on March 2, 1987. In order for statements to be
Diaz goes on to argue that the counterfeit social security card the unidentified woman delivered to Herrera at Diaz' residence on March 2 cannot be admitted into evidence. He contends that there was no proof that the woman was a member of the conspiracy, thus barring the utilization of the doctrine of vicarious liability as a basis for the document's admission. "A conspirator is liable for the acts of his coconspirators as long as he is a member of the conspiracy." United States v. Andrus, 775 F.2d 825, 850 (7th Cir.1985). We must determine whether the unidentified woman and Diaz were both part of the same conspiracy to distribute the false social security card to Herrera. We have determined in Section III of this opinion that the evidence was sufficient to support a holding that Diaz was a member of the conspiracy to distribute counterfeit alien registry and social security cards with Carrasco and his document supplier(s) at the time of the woman's delivery of the social security card to Herrera. The evidence in the record that the woman's delivery of the document to Herrera was the final phase of the conspiracy that began when Carrasco and Herrera agreed to the sale of a counterfeit social security card on February 23, 1987, and continued when Diaz agreed with Herrera on specific arrangements as to time and location of the delivery less than an hour prior to the woman's transaction with Herrera, supports a conclusion that this delivery was a component of the conspiratorial transaction. Moreover, the woman's inquiry as to whether Herrera was "here about a social security" and her receipt of money in exchange for the social security card demonstrates her knowing participation in a transaction that advanced the conspiracy's objective of sale and delivery of counterfeit documents. Accordingly, the trial court properly concluded that the woman was an active participant and, thus, a member of a conspiracy with Carrasco, document supplier(s) and Diaz at the time she delivered the false social security card to Herrera, thus permitting the introduction of the document against Diaz.
Finally, Diaz asserts that the false alien registry and social security cards Diaz allegedly delivered to Herrera on February 12, 1987, should not have been received in evidence since Herrera failed to identify Diaz as the person who gave him the documents. As was discussed in Section III, supra, there is ample evidence in this record upon which a rational factfinder could have identified Francisco Diaz as "Pancho" and found that Diaz delivered these counterfeit documents to Herrera on February 12, 1987. Thus, the false alien registry and social security cards were properly admitted into evidence.
Carrasco asserts that the district court erred in rejecting his entrapment defense.
We have recently observed that:
United States v. Fusko, 869 F.2d 1048, 1051 (7th Cir.1989). We have also noted that each party bears a burden in litigation concerning this defense:
United States v. Hawkins, 823 F.2d 1020, 1024 (7th Cir.1987).
"The Supreme Court has characterized the lack of criminal predisposition as `the principal element in the defense of entrapment.'" Fusko, 869 F.2d at 1052 (quoting United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973)). "Predisposition `refers to whether the defendant has a readiness or willingness to commit the offenses charged or whether the government "implant[ed] in the mind of an innocent person" the disposition to commit the offense.'" United States v. Perez-Leon, 757 F.2d 866, 871 (7th Cir.), cert. denied, 474 U.S. 831, 106 S.Ct. 99, 88 L.Ed.2d 80 (1985) (quoting United States v. Fields, 689 F.2d 122, 124 (7th Cir.), cert. denied, 459 U.S. 1089, 103 S.Ct. 573, 74 L.Ed.2d 935 (1982)). "In elaborating on this element, we have stated that `a "predisposed defendant is one who is ready and willing to commit an offense apart from government encouragement, and not an innocent person in whose mind the government implanted a disposition to commit an offense." United States v. Gabriel, 810 F.2d 627, 637 (7th Cir.1987) (citations omitted).'" Fusko, 869 F.2d at 1052 (quoting Hawkins, 823 F.2d at 1024-25). We have gone on to note that:
Fusko, 869 F.2d at 1052 (citations omitted) (quoting United States v. Thoma, 726 F.2d 1191, 1197 (7th Cir.), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984)). In addressing a similar claim that entrapment had been demonstrated as a matter of law, we observed that:
Perez-Leon, 757 F.2d at 871. "Entrapment is established as a matter of law `only when the lack of predisposition is apparent from the uncontradicted evidence.'" United States v. Navarro, 737 F.2d 625, 635 (7th Cir.1984) (quoting Thoma, 726 F.2d at 1197).
In this case, it is especially clear that "[t]he fourth factor [reluctance to commit the offense overcome by government persuasion] is ... the most important in determining [Carrasco's] predisposition." Fusko, 869 F.2d at 1053. In approaching this factor, we have previously stated that:
Fusko, 869 F.2d at 1053.
In this case the first transaction between Carrasco and Confidential Informant Herrera is particularly relevant to Carrasco's predisposition to commit the crimes with which he is charged. In this conversation Herrera told Carrasco of his need to obtain an alien registry card for a friend. The first question Carrasco had after hearing this statement was, "For when do you need it?" His (Carrasco's) response did not reflect a reluctance to become involved in a transaction, but rather an interest in determining the details of the proposed transaction. The parties then discussed the fact that the document manufacturer was currently absent from the country, but would return. Shortly thereafter Carrasco told Herrera to look elsewhere, but said "if you are not able to arrange anything, you come back and we will go see if he has returned." Carrasco's willingness to proceed with the transaction, if his supplier had been available was clearly manifested in his statement: "If he [the supplier] were here, well, with pleasure." Carrasco's clear willingness to proceed was further confirmed when he supplied Herrera with his telephone number for the purpose of pursuing a possible sale of these documents and when he quoted to Herrera the prices for both the alien registry and social security cards.
The evidence, viewed in the light most favorable to the government, was clearly sufficient for a rational factfinder to conclude that Carrasco was ready, willing, able and certainly not reluctant to engage in these transactions. Much of Carrasco's attention is focussed on the nature of the government's inducement of these sales. Essentially, Carrasco argues that the government preyed upon his deep concern for the problems faced by unregistered immigrants who need work to support themselves. Although the government informant made reference to these concerns, the fact remains that Carrasco, in his contact with the government, did not reflect any real reluctance to engage in the sale of false documents that was overcome by these appeals. Accordingly, based upon all the relevant factors, and appropriately emphasizing the absence of any real reluctance on Carrasco's part to engage in the document sale transactions, a rational factfinder could and did properly find beyond a reasonable doubt that Carrasco was predisposed to conspire to sell and sell counterfeit alien registry and social security cards. Because the Government established the predisposition to commit the offenses, the
SUPPRESSION OF CARRASCO'S POST-ARREST STATEMENTS
Carrasco also alleged that the district court improperly adopted a magistrate's recommendation rejecting Carrasco's motion to suppress statements he made during a post-arrest interrogation. In an attempt to conjure up a new defense with neither legal nor logical support, Carrasco asserts that an additional sixth amendment warning should be given in arrests made after an indictment and that, in any event, the totality of the circumstances of the interrogation in this case requires a conclusion that Carrasco's sixth amendment right to counsel was not properly waived.
We have previously set forth the standards we apply in reviewing a denial of a motion to suppress evidence:
United States v. D'Antoni, 856 F.2d 975, 978-79 (7th Cir.1988) (citations omitted).
The Magistrate's Report and Recommendation, that the court adopted (hereinafter referred to as Magistrate's Report and Recommendation), made a number of factual findings relevant to this matter. With respect to the circumstances of the arrest, the court found:
Magistrate's Report and Recommendation, at 2. The magistrate rejected a number of Carrasco's arguments regarding the circumstances of his interrogation. With respect to Carrasco's argument that he was poorly educated and had difficulty understanding Kading's Spanish the court found:
Magistrate's Report and Recommendation at 3. With respect to Carrasco's argument that Kading did not tell him the crime he was charged with committing, the court found that "Agent Kading stated that he told Carrasco that he was charged with selling counterfeit immigration and social security documents and I believe Agent Kading's testimony in this regard." Magistrate's Report and Recommendation at 3. Concerning Carrasco's assertion that Kading failed to tell him that he was under indictment, the court found:
Magistrate's Report and Recommendation at 4. In summary, the magistrate, in her Report and Recommendation, held:
Magistrate's Report and Recommendation at 4-5.
In our decision in Quadrini v. Clusen, 864 F.2d 577, 585-87 (7th Cir.1989), we recently addressed the question of waiver of the right to counsel in the context of an interrogation occurring after charges had been filed. We observed that:
864 F.2d at 585. In this case, as in Quadrini, "we find it necessary to address only the first two questions, namely whether the sixth amendment right to counsel had attached and whether [Carrasco] validly waived that right." Id.
Turning to the question of whether the right to counsel had attached at the time of the interrogation, we have noted that: "It is well established that a person is entitled to the service of a lawyer `at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information or arraignment." Id.
"Because we have determined that [Carrasco] had a right to have counsel present during his interrogation, we must now determine whether he intelligently, freely and voluntarily waived that right." Quadrini, 864 F.2d at 586. "As with a waiver under Miranda, the government must prove `an intentional relinquishment of a known right or privilege.'" Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)).
In arguing that he did not knowingly waive his right to counsel, Carrasco urges that, in cases of post-indictment interrogations, we should require a specific sixth amendment right to counsel warning in addition to the standard Miranda warnings. We rejected just this sort of argument in Quadrini:
864 F.2d at 586. Similarly, the United States Supreme Court recently rejected this sort of additional warning requirement in Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 2396-97, 101 L.Ed.2d 261 (1988), holding:
(Citation and footnote omitted). Accordingly, we reject the argument that specific warnings, in addition to those required under Miranda, must be given in order for a waiver of sixth amendment rights to be valid.
Carrasco also argues that the district court erred in determining that "[u]nder the totality of the circumstances, there was a valid waiver of Carrasco's Sixth Amendment right to counsel." Magistrate's Report and Recommendation, at 5. The district court's decision was an application of the "totality of circumstances" approach to waiver set forth in our decisions in Love v. Young, 781 F.2d 1307, 1316-18 (7th Cir.1986), and Robinson v. Percy, 738 F.2d 214, 222 (7th Cir.1984).
The district court's analysis initially was grounded upon its finding that Carrasco understood the warnings concerning right to counsel that Kading provided him. Carrasco urges that the evidence of his lack of education supports his position that he was not adequately informed of his right to counsel. In our opinion the evidence should be viewed as establishing that Carrasco sufficiently understood his rights, especially in light of the fact that he ultimately spoke out and asserted his right to counsel and terminated the interrogation.
Secondly, Carrasco argues that the factual circumstances do not support a knowing waiver because he was not informed of the crime with which he was ultimately charged. Based on the record, the district court chose to believe Agent Kading's testimony that he informed Carrasco of the charged crime and found that Carrasco was informed of the crime with which he was charged. As the Supreme Court has noted: "[W]hen a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error." Anderson, 470 U.S. at 575, 105 S.Ct. at 1512. Based on our review of the record we conclude that this factual determination based on a credibility determination, was not clearly erroneous.
Carrasco in a final shot argues against waiver on the ground that he was not informed that he had been indicted. In Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 2396-97 n. 5, 101 L.Ed.2d 261 (1988), the Supreme Court explicitly refused to make a determination concerning the legal significance of such a failure, stating:
(Citations omitted). In light of the totality of the factual circumstances involved in this case, including the thorough Miranda warnings set forth in the record, the use of the Spanish word "acusado" at his arrest and Carrasco's obvious ability to understand and comprehend the communications he received, we do not agree that the district court's finding that Carrasco had knowingly waived his sixth amendment right was clearly erroneous. As the magistrate noted, Carrasco was informed of the crime with which he was accused and of his Miranda rights, warnings that are normally sufficient for sixth amendment purposes. Moreover, Carrasco was informed that he was "acusado," a Spanish term that means accused, indicted or charged. After our review of this record and in light of all of the facts and circumstances set forth therein, the trial court properly held that Carrasco knew of his right to counsel and knowingly, willingly and intentionally relinquished this known right. Thus, the trial court's ruling that Carrasco waived his sixth amendment right to counsel in connection with the post-arrest interrogation was free of error and its ruling deciding to suppress the evidence obtained from this interrogation is upheld.
Upon review of the record we are convinced that the trial court rulings were proper and, thus, the convictions of Carrasco and Diaz are
United States v. Zambrana, 841 F.2d 1320, 1337 (7th Cir.1988) (footnotes omitted). For example, words could be subject to exact translation, but differences in grammar between languages could preclude exact translation of entire sentences. Thus, it would be normal to expect minor corrections in translation to occur between different drafts of a translated transcript.
Differences in grammar between languages, for example, could preclude exact translation of sentences. Accordingly, we are most reluctant to disturb a district court's admission of a translated transcript without some clear demonstration of inaccuracy.