United States v. Ivan Curbelo , 726 F.3d 1260 ( 2013 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-14665
________________________
D.C. Docket No. 2:09-cr-00077-JES-SPC-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IVAN CURBELO,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(August 9, 2013)
Before DUBINA, JORDAN and BALDOCK,* Circuit Judges.
BALDOCK, Circuit Judge:
*
Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting
by designation.
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A jury convicted Defendant Ivan Curbelo of conspiracy to manufacture and
possess marijuana with intent to distribute, as well as the substantive crime of
manufacturing and possessing marijuana with intent to distribute. He now
appeals, challenging his conviction and sentence. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.
I.
Defendant began working for Jose Diaz as a carpenter around 2007, doing
finish work inside Diaz’s residence in Naples, Florida. But Diaz, who had been
running an indoor marijuana growing operation since 2002, soon offered
Defendant the opportunity to engage in that more lucrative business. Apparently,
it was an offer Defendant could not refuse. In 2007, Diaz purchased a home on
Abdella Lane in North Port, Florida, putting the house in Defendant’s name.
Defendant and his cousin Carlos Curbelo prepared the house to grow marijuana,
and Defendant then hired Carlos as caretaker. Diaz paid Defendant 30 percent of
the profits to supervise the house, and Defendant in turn paid Carlos 15 percent to
serve as caretaker. Defendant eventually replaced Carlos with Damien Alzarez.
Sometime in 2008, Diaz put Defendant in charge of another grow house on Van
Camp Street because he was dissatisfied with that house’s yield. Defendant hired
a woman to act as caretaker. When the house developed an electrical problem
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after only one harvest, Defendant oversaw the installation of a transformer that
Diaz had stolen. Diaz testified that Defendant participated in a total of six
marijuana harvests between the Abdella and Van Camp houses. Diaz said each
harvest at the Abdella house yielded 190 plants, except for the last harvest, which
yielded between 240 and 250 plants because of the addition of the garage. He said
each harvest at Van Camp produced 190 plants. Diaz also testified that Defendant
helped process some plants cut at a grow house on Everglades Boulevard and
provided the new seedlings for that house.
In the course of investigating Diaz’s organization, Drug Enforcement
Administration (DEA) agents placed global–positioning–system (GPS) tracking
devices on vehicles used by Diaz and another of his right-hand men, Herman
Torres. The investigators did not obtain a warrant before installing the tracking
devices. The DEA also conducted GPS tracking of cellular phones used by
unspecified members of the organization. Investigators obtained court
authorization to intercept Diaz’s cellular phone communications. They intercepted
Diaz’s conversations with Defendant and Herman Torres, in which they discussed
many aspects of the marijuana growing operation.
A grand jury indicted Defendant and the other members of the Diaz
conspiracy with violations of the Controlled Substances Act. The superseding
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indictment charged Defendant with (1) conspiring to manufacture and possess
with intent to distribute 1,000 or more marijuana plants and to distribute and
possess with intent to distribute 100 or more kilograms of marijuana in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), (b)(1)(B)(vii), and 846, and (2)
manufacturing and possessing with intent to distribute 100 or more marijuana
plants in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii) and 18 U.S.C. § 2.
Defendant went to trial along with four of his co-conspirators.
During trial, the Government played recordings of the wiretaps of Diaz’s
telephone. Most of the conversations were in Spanish, so the Government
provided the jury an English-language transcript. The Government did not
identify who prepared the transcript. Instead, the Government established the
accuracy of the transcripts through the testimony of Diaz, who was able to speak
and read both Spanish and English. Defendant’s trial counsel objected to the
translations as hearsay and as “a violation of [the] confrontation clause.” Doc. 450
at 130.1 He continued, “The person, who translated the records, . . . that person’s
not here. I can’t cross examine.” Id. The district court overruled these objections
1
Defendant appealed along with three of his co-defendants, with each defendant filing a
separate record on appeal in their corresponding case numbers. Only one of the co-defendants,
however, included the trial transcripts from their joint trial. This creates some confusion in the
page numbering. Accordingly, when we cite the trial transcripts in this case, we will cite the
district court docket. See Fed. R. App. P. 10(a)(2). When we cite the “Record,” we mean the
four-volume record filed in this case, appellate number 10-14665.
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and allowed the jury to view the translated transcripts. The jury convicted
Defendant on both counts. Defendant’s initial guideline imprisonment range
under the United States Sentencing Guidelines was 108–135 months, but his
conviction on the conspiracy count carried a mandatory minimum sentence of ten
years. See 21 U.S.C. § 841 (b)(1)(A)(vii). Accordingly, the district court
sentenced Defendant to concurrent 120-month sentences on each count. The court
also imposed a joint and several forfeiture judgment against Defendant and his co-
defendants in the amount of $850,000.
Defendant appeals, raising the following five arguments: (1) the GPS
tracking evidence was obtained in violation of the Fourth Amendment, (2) trial
counsel was ineffective for failing to move to suppress the GPS tracking evidence,
(3) the evidence was insufficient to support a sentencing enhancement for
conspiracy to possess over 1,000 plants, (4) the court violated the Confrontation
Clause by admitting the translated transcripts, and (5) the court erred in not
submitting the forfeiture allegations to the jury.
II.
We turn first to Defendant’s Fourth Amendment argument. He argues the
district court plainly erred when it allowed the Government to present evidence
obtained from the GPS tracking of Diaz and Herman Torres’s vehicles and some
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of the conspirators’ cellular phones. Defendant relies on the Supreme Court’s
holding, handed down more than a year after his trial, that “the attachment of a
Global–Positioning–System (GPS) tracking device to an individual’s vehicle, and
subsequent use of that device to monitor the vehicle’s movements on public
streets, constitutes a search or seizure within the meaning of the Fourth
Amendment.” United States v. Jones, 132 S. Ct. 945, 948 (2012). Defendant did
not file a motion to suppress the GPS-tracking evidence in the district court, but he
claims we can review the issue for plain error.2 See Fed. R. Crim. P. 52(b). The
Government, in turn, argues Defendant waived the issue entirely.
Federal Rule of Criminal Procedure 12(b)(3) requires motions to suppress to
be made before trial. Rule 12(e), in turn, says, “A party waives any Rule 12(b)(3)
defense, objection, or request not raised by the deadline the court sets under Rule
12(c) or by any extension the court provides. For good cause, the court may grant
relief from the waiver.” In keeping with Rule 12(e), we have said, “A defendant
who fails to make a timely suppression motion cannot raise that claim for the first
2
As the Government points out, it is not entirely clear any evidence introduced at trial
resulted from the GPS tracking. But the affidavit supporting the search warrant for the Van
Camp house said, “The data received from these GPS tracking devices led to the identification of
a suspected grow house located at 6800 Van Camp Street in North Port, Florida.” Record, vol. 2
at 222. Most of the warrant applications for the other grow houses contained similar language.
So an evidentiary hearing might well have shown the physical evidence at those houses was fruit
of the GPS tracking.
6
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time on appeal.” United States v. Lall, 607 F.3d 1277, 1288 (11th Cir. 2010)
(brackets omitted) (quoting United States v. Pope, 467 F.3d 912, 918 (5th Cir.
2006)).
Defendant tries to get around Rule 12(e)’s waiver rule by invoking Griffith
v. Kentucky, 479 U.S. 314 (1987). In Griffith, the Supreme Court held that “a
new rule for the conduct of criminal prosecutions is to be applied retroactively to
all cases, state or federal, pending on direct review or not yet final, with no
exception for cases in which the new rule constitutes a ‘clear break’ with the past.”
Id. at 328. But Griffith does not save Defendant’s suppression argument. “The
Griffith holding . . . applies only to defendants who preserved their objections
throughout the trial and appeals process.” United States v. Verbitskaya, 406 F.3d
1324, 1340 n.18 (11th Cir. 2005). See also Shea v. Louisiana, 470 U.S. 51, 59 n.4
(1985) (observing that retroactive application of the Fifth and Fourteenth
Amendments is subject “to established principles of waiver, harmless error, and
the like”). So, even though Defendant’s case was pending on appeal when the
Supreme Court decided Jones, Defendant cannot take advantage of Jones’s
holding. As the Tenth Circuit recently explained,
To say that Jones should be the governing law on this direct appeal is
to say no more than that it should be treated the same as law that had
been settled years earlier. And arguments based on years-ago
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decisions certainly can be forfeited and waived (otherwise nothing
could be waived under Rule 12(e)), even though there could be no
dispute that those decisions “apply” to cases on appeal.
United States v. Baker, 713 F.3d 558, 562 (10th Cir. 2013). In short, Griffith does
not allow Defendant to get around our usual rule that failing to file a suppression
motion waives Fourth Amendment claims, even claims based on a new ruling from
the Supreme Court.
Because Defendant waived this argument under Rule 12(e), we need only
examine whether good cause would support relief from the waiver. Defendant has
not pointed to anything that would qualify as good cause. No good cause exists if
“the defendant had all the information necessary to bring a Rule 12(b) motion
before the date set for pretrial motions, but failed to file it by that date.” United
States v. Seher, 562 F.3d 1344, 1359 n.15 (11th Cir. 2009). Here, Defendant was
aware before trial that the Government used GPS tracking, but he did not
challenge the tracking. So we will not set aside Defendant’s waiver of his
suppression claim.3
3
The Government also argues Defendant has no Fourth Amendment standing because the
record does not indicate the DEA tracked Defendant’s vehicle or cellular phone. See United
States v. Gibson, 708 F.3d 1256, 1277 (11th Cir. 2013). We need not reach this issue because
Defendant waived the Fourth Amendment argument. Of course, the doctrine of standing as it
relates to our jurisdiction under Article III is ordinarily a question we resolve before turning to
anything else. Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1242 (11th Cir. 2003).
But a person’s ability to raise a Fourth Amendment challenge is not a matter of Article III
standing, but of “substantive Fourth Amendment law.” Rakas v. Illinois, 439 U.S. 128, 140
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III.
Defendant next argues his trial counsel was ineffective because he failed to
move to suppress the GPS evidence. “Except in the rare instance when the record
is sufficiently developed, we will not address claims for ineffective assistance of
counsel on direct appeal.” Verbitskaya, 406 F.3d at 1337. An ineffective
assistance claim should usually be raised in a motion under 28 U.S.C. § 2255.
United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010). Defendant
asserts that the record is sufficiently developed to conclude his counsel was
ineffective. But the record does not show the DEA ever tracked Defendant’s
telephone or vehicle. Thus, on this record, Defendant’s counsel had no basis for
filing a suppression motion. See United States v. Gibson, 708 F.3d 1256, 1277
(11th Cir. 2013) (holding that a defendant could not challenge the GPS tracking of
a vehicle “when it was moving on public roads and he was neither the driver nor a
passenger”). And it goes without saying that counsel is not ineffective for failing
to file a meritless suppression motion. See Jefferson v. Fountain, 382 F.3d 1286,
1297 (11th Cir. 2004). We simply cannot consider Defendant’s ineffective
assistance claim on this record.
IV.
(1978). So we can decide this case based on Defendant’s waiver alone.
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Next, Defendant argues the evidence was insufficient to support the
sentencing enhancement for a conspiracy involving more than 1,000 marijuana
plants. The Government argues that we review “for clear error the district court’s
determination of the drug quantity attributable to a defendant.” Appellant’s Br. at
32. This properly states our standard or review for a district court’s factual
findings at sentencing. See United States v. Carillo-Ayala, 713 F.3d 82, 87 (11th
Cir. 2013). But the drug quantities in this case were found by a jury, not the court.
We review a jury’s findings de novo, asking “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted). Until recently, the
Government might have been right about the standard of review. That is, we
might have concluded that since the jury did not need to find the drug quantity, we
could simply review the district court’s application of the jury’s findings as if they
were the court’s own. But that door was closed by the Supreme Court’s recent
decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), as we explain.
Section 846 of Title 21 says, “Any person who attempts or conspires to
commit any offense defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense, the commission of which was the
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object of the attempt or conspiracy.” The indictment in this case charged
Defendant with conspiracy to violate § 841(a)(1) and with the penalties in
subsections (b)(1)(A)(vii) (for 1,000 or more marijuana plants) and (b)(1)(B)(vii)
(for 100 kilograms or more of marijuana). Section 841(a)(1) generally proscribes
knowingly or intentionally manufacturing or possessing with intent to distribute a
controlled substance. The maximum sentence for possessing a Schedule I
substance (including marijuana) in violation of § 841(a)(1) is 20 years. A simple
violation of § 841(a) carries no mandatory minimum. Subsections (b)(1)(A) and
(b)(1)(B), however, increase the statutory maximum and impose mandatory
minimums. They increase the maximum sentence to either life imprisonment (for
1,000 or more marijuana plants) or 40 years (for 100 kilograms or more of
marijuana). They also carry mandatory minimum sentences of ten and five years,
respectively.
The statutory scheme is straightforward enough. The more complicated
question has been who is responsible for making factual findings—the court or the
jury. Prior to 2000, this circuit said a jury only needed to find the elements of the
§ 841(a)(1) offense and that the district court could impose sentence enhancements
under § 841(b) based on its own factual findings. See United States v. Hester, 199
F.3d 1287, 1292–93 (11th Cir. 2000) (rejecting the argument that the enhancement
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under § 841(b)(1)(A)(vii) for 1,000 or more marijuana plants was an element of
the offense). Under that scheme, we reviewed the district court’s factual findings
for clear error. Id. at 1289.
Everything changed, however, with the Supreme Court’s decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000). There, the Court held that “[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Id. at 490. In Blakely v. Washington, 542 U.S. 296,
303–04 (2004), the Court clarified that “the relevant ‘statutory maximum’ is not
the maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.” Apprendi and Blakely
did not put an end to judicial fact-finding in sentencing. For one thing, the Court
held in Harris v. United States, 536 U.S. 545, 568 (2002), that Apprendi did not
apply to mandatory minimum sentences. Thus, judges could make factual findings
relevant to statutory minimums by a preponderance of the evidence as long as the
minimum was “[w]ithin the range authorized by the jury’s verdict.” Id. at 567.
See Spero v. United States, 375 F.3d 1285, 1286 (11th Cir. 2004) (per curiam).
For another, judges could determine facts relevant to the appropriate sentence
under the United States Sentencing Guidelines, as long as those findings did not
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take the sentence above the statutory maximum. United States v. Booker, 543
U.S. 220, 233 (2005) (“[W]hen a trial judge exercises his discretion to select a
specific sentence within a defined range, the defendant has no right to a jury
determination of the facts that the judge deems relevant.”).
Under the law as it stood during briefing and oral argument in this case, the
fact-finding duties were allocated as follows. The jury had to find each element of
the § 841(a)(1) offense beyond a reasonable doubt. The jury also had to find the
facts supporting the various § 841(b) enhancements beyond a reasonable doubt if
the court was going to impose a sentence above 20 years (the maximum for a
§ 841(a)(1) offense involving a Schedule I substance). But if the court imposed a
sentence of 20 years or less, it could find by a preponderance the facts relevant to
a defendant’s guideline range and the facts supporting a mandatory minimum,
such as the five- and ten-year minimums under § 841(b)(1)(B)(vii) and
(b)(1)(A)(vii). Spero, 375 F.3d at 1286.
A week after oral argument in this case, the Supreme Court decided
Alleyne, which overruled Harris and held that “any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury.” Alleyne,
133 S. Ct. at 2155. Because § 841(b)(1)(A) and (b)(1)(B) impose a mandatory
minimum, the drug quantities in those subsections are elements of the offense
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under Alleyne and must be charged in the indictment and submitted to a jury.
Happily for the Government, it submitted the sentencing facts to the jury even
though Alleyne had not yet been decided. So this case does not raise any
Apprendi concerns. But Alleyne does affect our standard of review, because we
are reviewing the jury’s fact-finding, not the district court’s. Accordingly, our
task is to determine whether, viewing the evidence in the light most favorable to
the Government, “a reasonable trier of fact could find that the evidence established
guilt beyond a reasonable doubt.” United States v. Williams, 527 F.3d 1235, 1244
(11th Cir. 2008) (quoting United States v. Calhoon, 97 F.3d 518, 523 (11th Cir.
1996)).
We can easily conclude that the evidence was sufficient for the jury to find
Defendant conspired to possess 1,000 or more marijuana plants. To convict a
defendant of conspiracy under 21 U.S.C. § 846, the Government must prove (1) an
agreement existed between the defendant and at least one other person, (2) the
defendant knew the object of the conspiracy and the object was illegal, and (3) the
defendant knowingly and voluntarily participated in the conspiracy. United States
v. Westry, 524 F.3d 1198, 1212 (11th Cir. 2008) (per curiam). The evidence did
not need to show Defendant himself possessed 1,000 or more marijuana plants
with intent to distribute. See Salinas v. United States, 522 U.S. 52, 63 (1997).
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Instead, the Government only needed to prove Defendant joined a conspiracy that
had the “object” of manufacturing or possessing with intent to distribute more than
1,000 marijuana plants. 21 U.S.C. § 846. “The partners in the criminal plan must
agree to pursue the same criminal objective and may divide up the work, yet each
is responsible for the acts of each other.”4 Salinas, 522 U.S. at 63–64 (citing
Pinkerton v. United States, 328 U.S. 640, 646 (1946)).
Here, the jury heard that Defendant supervised six harvests at the Abdella
and Van Camp houses. The testimony was fuzzy regarding whether this was six
total harvests or six harvests at the Abdella house plus some harvests at Van
Camp.5 Either way, the jury heard that Defendant supervised one harvest of 240 to
250 plants, and at least five harvests of 190 plants each. So the Abdella and Van
Camp houses produced at least 1,190 to 1,200 plants on Defendant’s watch. When
4
In discussing Defendant’s responsibility for the acts of his co-conspirators, the
Government cites only the Sentencing Guidelines’ definition of relevant conduct, which includes
all acts Defendant “committed, aided, [or] abetted” during the conspiracy and “all reasonably
foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal
activity.” U.S.S.G. § 1B1.3(a)(1)(A), (B). The Guidelines’ definition is, indeed, the proper
standard for a district court to use in calculating a defendant’s guideline range. But the
Guidelines’ standard is not the standard we use when reviewing the jury’s finding that Defendant
joined a conspiracy that had the goal of distributing 1,000 or more marijuana plants.
5
Initially, Diaz testified that Defendant participated in “six” total harvests, including
harvests at Abdella and Van Camp. Doc. 451 at 30–31. Later, however, Defendant’s counsel
asked Diaz, “So when you testified that there were six harvests allegedly at the Abdella home,
the vast majority of those . . . would have been just the main house alone, not the garage?” Id. at
152–53. Diaz responded “exactly,” without correcting counsel’s assumption that he participated
in six harvests at the Abdella house.
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police executed a search warrant at the Abdella house, they found another 200
plants. Then there was Diaz’s testimony that Defendant assisted with processing
at least one harvest from the Everglades Boulevard house, which yielded about
200 plants. So the evidence showed Defendant was directly involved in growing
more than 1,000 marijuana plants. This is without considering the many plants
grown at the organization’s other houses during Defendant’s participation in the
conspiracy.
As part of his sufficiency argument, Defendant raises a new argument that
“the jury form improperly mixed and matched the number of plants sentencing
enhancement with the weight of marijuana sentencing enhancement for Count 1.”
Appellant’s Br. at 46. Defendant did not object to the jury verdict form below, so
we review this newly-minted argument only for plain error. United States v.
Mitchell, 146 F.3d 1338, 1342 (11th Cir. 1998). “In order to show plain error, a
defendant must demonstrate that (1) error existed, (2) the error was plain, (3) the
error affected his substantial rights, and (4) the error seriously affected the
fairness, integrity or public reputation of judicial proceedings.” United States v.
Gandy, 710 F.3d 1234, 1240 (11th Cir. 2013) (per curiam).
Count 1, the conspiracy count, charged Defendant with conspiracy “to
manufacture and possess with intent to distribute one thousand (1000) or more
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marijuana plants, and to distribute and possess with intent to distribute one
hundred (100) or more kilograms of . . . marijuana . . . .” Record, vol. 1 at 62. The
jury verdict form, after asking if Defendant was guilty or not guilty, asked the jury
to specify the number of plants and quantity of marijuana involved. The options
for the number of marijuana plants were (1) 1,000 or more, (2) less than 1,000 but
more than 100, and (3) less than 100. For the amount of marijuana, the options
were (1) 100 kilograms or more and (2) less than 100 kilograms. The jury checked
the boxes for “1000 or more marijuana plants” and “100 kilograms or more of
marijuana.” Record, vol. 2 at 342–43.
Defendant says the “verdict form improperly omitted the 1,000 kilograms or
more jury question as was required under 21 U.S.C. § 841(b)(1)(A)(vii).”
Appellant’s Br. at 47. Defendant is correct that the Government “mixed and
matched” statutory provisions. Id. at 46. Subsection (b)(1)(A)(vii) applies to
either 1,000 kilograms of marijuana or 1,000 marijuana plants. And subsection
(b)(1)(B)(vii) applies to 100 kilograms of marijuana or 100 marijuana plants. The
indictment’s conspiracy count borrowed from each subsection, charging 1,000 or
more plants but only 100 kilograms. Charging two different penalty provisions
(with different maximum and minimum sentences) in one count is certainly
unusual. But Defendant has not shown us how the verdict form was “improper.”
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The verdict form required the jury to make individualized findings regarding the
weight of marijuana and the number of plants. Because the jury found the
conspiracy involved more than 1,000 marijuana plants, the higher statutory
maximum and minimum were appropriate. The jury’s finding that the conspiracy
involved more than 100 kilograms of marijuana became essentially irrelevant and
did not affect Defendant’s sentence. So we can perceive no error, plain or
otherwise.
Furthermore, the solution Defendant points to—including a “1,000
kilograms or more jury question”—would have changed nothing. Because the
Government did not try to prove the conspiracy involved 1,000 or more kilograms,
the jury likely would have checked exactly the same boxes it did.6 So Defendant
could not show prejudice, even if he could show a plain error.
V.
Defendant next argues the translated transcripts of the wiretaps were
improperly admitted. He renews the Confrontation Clause argument he made in
the district court and to a lesser extent his objection that the transcripts lacked an
evidentiary foundation.
6
Diaz testified that four plants produced about a pound and a half of marijuana. Doc. 451
at 30. Thus, 1,000 plants would only yield about 375 pounds or 170 kilograms.
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A.
Defendant’s lack of foundation argument need not detain us long. This
circuit has established a procedure for “challenging the accuracy of an English-
language transcript of a conversation conducted in a foreign language.” United
States v. Le, 256 F.3d 1229, 1238 (11th Cir. 2001). If the parties cannot agree on
a stipulated transcript, “then each side should produce its own version of a
transcript or its own version of the disputed portions.” Id. (quoting United States
v. Cruz, 765 F.2d 1020, 1023 (11th Cir. 1985)). When a defendant does not avail
himself of this procedure, he “waive[s] his right to challenge the translation and
the transcripts.” Id. Because Defendant did not produce any alternative
transcripts, he has waived this argument.
Even if Defendant had preserved the argument, the Government adduced an
adequate foundation for the transcripts. Under Federal Rule of Evidence 901(a),
the proponent need only “produce evidence sufficient to support a finding that the
item is what the proponent claims it is.” Here, Diaz testified that he was fluent in
both Spanish and English, was able to read both languages, had listened to the
wiretap recordings, and believed the translated transcripts accurately reflected the
recorded conversations. Because Diaz had himself been a party to each of the
conversations, he was in an excellent position to authenticate the transcripts. See
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United States v. Hogan, 986 F.2d 1364, 1376 (11th Cir. 1993) (finding no error
when a party to a English-language conversation authenticated the transcripts). So
Defendant’s authentication argument cannot prevail.
B.
Defendant’s failure to present his own transcripts did not waive his
Confrontation Clause argument. See Bullcoming v. New Mexico, 131 S. Ct. 2705,
2718 (2011) (noting that the Government bears the burden of presenting its
witnesses). We review a preserved Confrontation Clause claim de novo. United
States v. Ignasiak, 667 F.3d 1217, 1227 (11th Cir. 2012). The Sixth Amendment
provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him . . . .” U.S. Const. amend. VI. In
Crawford v. Washington, 541 U.S. 36, 59 (2004), the Supreme Court held that the
Sixth Amendment permits the admission of “testimonial statements of witnesses
absent from trial . . . only where the declarant is unavailable, and only where the
defendant has had a prior opportunity to cross-examine.” Testimonial statements
include statements that are the “functional equivalent” of in-court testimony, such
as affidavits, depositions, prior testimony and “statements that were made under
circumstances which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial.” Id. at 51–52. Thus, the
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Court has held that the Confrontation Clause applies to a laboratory analyst’s
certification that a blood sample contained a certain blood alcohol content,
Bullcoming, 131 S. Ct. at 2713, or that a substance contained cocaine, Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 310–11 (2009).
The Confrontation Clause only applies to “testimonial statements,”
specifically testimonial hearsay. Crawford, 541 U.S. at 53, 59. So to apply the
Confrontation Clause to the transcripts in question, we must first identify in the
transcripts a statement that is both testimonial and hearsay. We can first dispense
with the idea that the original wiretapped conversations were testimonial hearsay.
Even if the Government introduced Diaz’s telephone conversations with
Defendant and Herman Torres to prove the truth of the matters asserted, the three
men had no reason to believe their conversations “would be available for use at a
later trial.”7 Crawford, 541 U.S. at 52. Nor did the unidentified translator certify
the accuracy of the transcripts in the way the analysts certified the laboratory
results in Bullcoming or Melendez-Diaz. If the translator had, for example,
certified that “the above English-language transcript is a true and accurate
7
Additionally, Diaz’s statements in the wiretapped conversations would be admissible
because he “appear[ed] for cross-examination at trial,” meaning “the Confrontation Clause places
no constraints at all on the use of his prior testimonial statements.” Crawford, 541 U.S. at 59 n.9.
And Defendant’s side of the conversations would not be hearsay, because a defendant’s own
admissions may be admitted against him without violating the Confrontation Clause. United
States v. Brown, 441 F.3d 1330, 1358–59 (11th Cir. 2006).
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translation of the conversations recorded in Government’s exhibits 17 and 18,” we
would be faced with an obvious testimonial statement. But here the transcripts
contained no certification.
This means that the closest thing we have to a hearsay statement by the
anonymous translator is the transcripts themselves. But can a mere transcript of a
conversation be a hearsay statement for Confrontation Clause purposes? Insofar
as the transcripts are simply English versions of Diaz’s telephone conversations,
they do not contain any hearsay statements by the translator. The Confrontation
Clause only applies to testimonial statements that are used to establish “the truth
of the matter asserted.” Crawford, 541 U.S. at 59 n.9. But the transcripts in this
case did not contain any express “assertions” by the translator that could be true or
false. The translator’s only assertion in the transcripts is his or her implicit
statement that the translation was accurate. That is, when the translator created the
transcripts, he or she represented that each English word, phrase, or concept
corresponded to the original Spanish word, phrase, or concept.
We recently concluded, for similar reasons, that an oral interpreter was “the
declarant of the English-language statements” when a witness repeated the
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interpreted conversation at trial.8 United States v. Charles, — F.3d —, No. 12-
14080, slip. op. at 10 (11th Cir., July 25, 2013). To limit the Confrontation Clause
to express hearsay statements would allow the Government to skirt the Clause’s
requirements. We doubt the prosecution in Bullcoming or Melendez-Diaz could
have avoided the Confrontation Clause simply by admitting the numeric or
chemical results of the blood–alcohol or cocaine tests without an analyst’s
certification about how he arrived at those results. See Bullcoming, 131 S. Ct. at
2717 (concluding that allowing disallowing sworn statements but allowing
unsworn statements “would make the right to confrontation easily erasable”);
Williams v. Illinois, 132 S. Ct. 2221, 2276 (2012) (Kagan, J., dissenting)
(observing the Bullcoming decision would not have allowed “the laboratory to file
the selfsame report without the oath”). As the Court said in Melendez-Diaz, the
certificates of analysis contained “the precise testimony the analysts would have
been expected to provide if called at trial.” Melendez-Diaz, 557 U.S. at 310. If,
8
Although in Charles we did not discuss whether the translator’s statements were explicit
or implicit, we reasoned that the interpreter’s statements were not the same as the original
declarant’s because interpretation “is the oral form of transferring meaning from one language
. . . into another language.” Charles, No. 12-14080, slip op. at 10. Of course, the only assertions
that an interpreter makes relate to this process of transferring meaning. When an interpreter or
translator renders the French “l’etat, c’est moi” into “I am the state,” he is not asserting he is the
state, but rather that “I am the state” is an accurate rendering of what the speaker (or Louis XIV)
said. It is this added layer—the translator or interpreter’s implicit assertions about the meaning
of words—that make “the statements of the language interpreter and [the defendant] . . . not one
and the same.” Id. at 10.
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instead of introducing the transcripts, the Government had called the translator to
interpret the audio recordings to the jury, the testimony would have differed little
from the transcripts. So the translator’s implicit representation that the transcripts
were correct qualifies as a hearsay statement for purposes of the Confrontation
Clause.9
Next, of course, we must ask if this statement is testimonial. We do not
know when or why the translator prepared the transcripts, but we would assume he
or she did so with an eye toward trial. See Crawford, 541 U.S. at 51–52
(characterizing as testimonial “statements that were made under circumstances
which would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial”). Furthermore, although the
Government’s concession is not dispositive, see Gilbert v. United States, 640 F.3d
9Two of our sister circuits have applied the “language conduit” rule to conclude that an
oral interpreter’s statements are really statements of the speaker for purposes of the
Confrontation Clause. United States v. Orm Hieng, 679 F.3d 1131, 1139 (9th Cir. 2012); United
States v. Martinez-Gaytan, 213 F.3d 890 (5th Cir. 2000). “A defendant and an interpreter are
treated as identical for testimonial purposes if the interpreter acted as a ‘mere language conduit’
or agent of the defendant.” Orm Hieng, 679 F.3d at 1139 (quoting United States v. Nazemian,
948 F.2d 522, 528 (9th Cir. 1991). The factors for determining whether an interpreter is a
language conduit include “which party supplied the interpreter, whether the interpreter had any
motive to mislead or distort, the interpreter’s qualifications and language skill, and whether
actions taken subsequent to the conversation were consistent with the statements as translated.”
Id. (quoting Nazemian, 948 F.2d at 527). Although we have cited the language conduit rule with
approval in the hearsay context, United States v. Alvarez, 755 F.2d 830, 860 (11th Cir. 1985), we
recently held that it does not apply in the Confrontation Clause context. Charles, No. 12-14080,
slip op. at 19.
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1293, 1306 n.14 (11th Cir. 2011) (en banc), the Government conceded at oral
argument that the transcript was testimonial.
Yet even if the translator made a testimonial statement out of court, the
transcripts’ admission did not violate the Confrontation Clause. The transcripts
can only be testimonial to the extent they reflect the translator’s statement
(implicit here) that the English translation accurately reflects the Spanish
conversation. Yet this is exactly what Diaz—a participant in the
conversations—testified to based on his independent review of the recordings and
transcripts. In fact, the anonymous translator’s implicit statement was never
admitted at trial. The only statement the jury heard regarding the transcripts’
accuracy came from Diaz. Thus, even if the translator made a testimonial
statement out of court, he or she did not become a “witness against” Defendant at
trial.
Of course, the transcripts were the translator’s work product, not Diaz’s.
But Diaz testified to his own judgment that the transcripts were accurate, not to the
translator’s judgment. That fact distinguishes this case from Melendez-Diaz and
Bullcoming. In Melendez-Diaz, the state charged the defendant with distributing
cocaine after he was arrested with several plastic bags that apparently contained
cocaine. Melendez-Diaz, 557 U.S. at 308. At trial, the prosecution placed the
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bags into evidence, along with three certificates of analysis stating the substance
in the bags contained cocaine. Id. The Supreme Court held that the certificates,
which had been sworn before a notary, “were testimonial statements, and the
analysts were ‘witnesses’ for purposes of the Sixth Amendment.” Id. at 311.
Thus, admitting the certificates without allowing the analysts to be cross-examined
violated the Confrontation Clause. Here, by contrast, the Government did not
introduce the transcripts on the weight of the translator’s certification, but on
Diaz’s testimony.
In Bullcoming, Curtis Caylor, a forensic analyst at the New Mexico
Department of Health’s Scientific Laboratory Division (SLD), tested a blood
sample taken from the defendant upon his arrest for drunk driving. Bullcoming,
131 S. Ct. at 2710. Caylor signed a certificate of analysis stating that he had tested
the blood with a gas chromatograph machine and had followed established
procedures. Id. at 2710–11. The certificate reported a blood alcohol content well
over the legal limit. Id. at 2710. At the defendant’s trial, the state did not call
Caylor. Id. at 2711–12. Instead, the state admitted the certificate of analysis
through the testimony of another scientist, Gerasimos Razatos, “who had neither
observed nor reviewed Caylor’s analysis.” Id. at 21712.
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The New Mexico Supreme Court concluded Razatos’s testimony sufficed
because Razatos was an expert “with respect to the gas chromatograph machine
and the SLD’s laboratory procedures.” Id. at 2716 (quoting State v. Bullcoming,
226 P.3d 1, 9 (N.M. 2010)). The United States Supreme Court rejected this
argument. Razatos had no firsthand knowledge of several facts contained in
Caylor’s certification, including that the blood sample seal was unbroken and that
Caylor adhered to precise testing protocols. Id. at 2714. The Court said the Sixth
Amendment “does not tolerate dispensing with confrontation simply because the
court believes that questioning one witness about another’s testimonial statements
provides a fair enough opportunity for cross-examination.” Id. at 2716.
Unlike Razatos in Bullcoming, Diaz did not testify regarding the first
translator’s expertise or adherence to proper protocols. Instead, he testified that he
had independently confirmed the transcripts’ accuracy. This is exactly what
Razatos was unable to do. The Court in Bullcoming said, “New Mexico could
have avoided any Confrontation Clause problem by asking Razatos to retest the
sample, and then testify to the results of his retest rather than to the results of a test
he did not conduct or observe.” Bullcoming, 131 S. Ct. at 2718. Diaz conducted
the equivalent of a “retest” in this case. He testified he had listened to the
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recordings, reviewed the transcripts, and believed the transcripts to be accurate
reflections of the recordings. See Doc. 450 at 126–27.
To be sure, Diaz did not start from scratch in translating the conversations.
So it was not a retest in the sense that a new blood test would be. But Diaz did not
need to sit down with pencil and paper and start the translation process anew. Just
because the translator worked on the transcript did not taint it constitutionally. In
Melendez-Diaz, the Court said, “[W]e do not hold, and it is not the case, that
anyone whose testimony may be relevant in establishing the chain of custody,
authenticity of the sample, or accuracy of the testing device, must appear in person
as part of the prosecution’s case.” Melendez-Diaz, 557 U.S. at 311 n.1. Rather,
“what testimony is introduced must (if the defendant objects) be introduced live.”
Id. Diaz’s live testimony was the only statement introduced to support the
transcript’s accuracy. Furthermore, his testimony was based on firsthand
comparison of the recordings and the transcripts. See Bullcoming, 131 S. Ct. at
2722 (Sotomayor, concurring) (“[T]his is not a case in which the person testifying
is a supervisor, reviewer, or someone else with a personal . . . connection to the
scientific test at issue.”). So the only testimony introduced to support the
transcripts was “introduced live.”
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Defendant, of course, objects that Diaz was unqualified to testify regarding
the transcripts’ accuracy. But that is a question wholly independent from the
Confrontation Clause. The Confrontation Clause makes no distinction between
accurate and inaccurate testimony; it only insists that testimony be subject to
cross-examination. Crawford, 541 U.S. at 61 (“[The Confrontation Clause]
commands, not that evidence be reliable, but that the reliability be assessed in a
particular manner: by testing in the crucible of cross-examination.”). Nothing
prevented Defendant from vigorously cross-examining Defendant regarding his
language expertise, his biases, and the translation’s accuracy. This is no more and
no less than Defendant could have done if the original translator had taken the
stand.
The conclusion we reach today is similar to the one we reached in an
unpublished opinion, United States v. Sardinas, 386 F. App’x 927 (11th Cir. 2010)
(unpublished). There, the Government introduced both audio and video
recordings of various conversations conducted in Spanish. Id. at 941. The
Government also introduced transcripts containing the Spanish original alongside
an English translation. Id. Transcribers working for the drug task force initially
prepared the transcripts, but a bilingual agent, Agent Checo, listened to the
recordings, made corrections, and had the final word on the content of the
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transcripts. Id. Agent Checo testified at trial. Id. at 942. Reviewing the
Confrontation Clause issue for plain error, we rejected the defendant’s argument
that the original transcribers needed to testify. Id. at 942. We concluded that
“even assuming the transcripts fall into the ‘core class of testimonial statements’
under Crawford and Melendez-Diaz,” the defendant had shown no error. Id. We
said, “Agent Checo, who reviewed the recordings himself, had the ultimate say
over the content of the transcripts, making him the final translator. He is thus the
witness against [the defendant] for Confrontation Clause purposes.” Id. In this
case, Diaz was not actively involved in the production of the final transcript in the
way Agent Checo was in Sardinas. But, like Agent Checo, Diaz testified to the
accuracy of the transcripts and was subject to cross-examination. And—let us not
forget—Diaz was a party to the transcribed conversations, meaning he was in a
better position than anyone else to know what was actually said (and meant) in the
conversations.
Our recent decision in United States v. Charles does not affect the outcome
in this case. In Charles, the Government charged the defendant, a Haitian
national, with using a fraudulently altered travel document. Charles, No. 12-
14080, slip op. at 2. A Customs and Border Protection (CBP) officer interviewed
the defendant with the assistance of an over-the-phone Creole interpreter. Id. at 3.
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At trial, the officer testified to what the defendant said in the interview, though the
officer was really testifying to what the interpreter said. Id. The Government did
not call the interpreter as a witness. Id. at 4. We concluded the interpreter made
out-of-court testimonial statements when she conveyed in English what the
defendant said in Creole. Id. at 9–10. We said, “[G]iven the nature of language
interpretation, the statements of the language interpreter and [the defendant] are
not one and the same.” Id. at 10. We concluded the Confrontation Clause
required the interpreter to be subject to cross-examination at trial. Id. at 23–24.
But because the defendant only raised the Confrontation Clause on appeal, our
review in Charles was only for plain error. Id. at 5. We held the error was not
plain because of the absence of binding precedent “clearly articulating that the
declarant of the statements testified to by the CBP officer is the language
interpreter.” Id. at 24.
The present case differs from Charles in one important respect. The CBP
officer in Charles testified to out-of-court statements made by the interpreter.
Here, by contrast, Diaz never even mentioned the anonymous translator. Rather,
he testified regarding his own assessment that the transcripts were accurate
translations. In short, because Diaz, not the original translator, was the “witness[]
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against” Defendant under the Sixth Amendment, the admission of the transcripts
through Diaz’s testimony did not violate the Confrontation Clause.
VI.
Finally, Defendant argues the district court erred when it denied his request
to submit the forfeiture allegations to a jury. Federal Rule of Criminal Procedure
32.2 governs criminal forfeiture actions. The Government argues the rule does not
give Defendant a right to a jury determination of the forfeitability of a money
judgment as opposed to specific property. Because this question hinges on the
proper interpretation of a procedural rule, our review is de novo. United States v.
Beach, 113 F.3d 118, 189 (11th Cir. 1997).
Federal Rule of Criminal Procedure 32.2(b)(1)(A) says,
If the government seeks forfeiture of specific property, the court must
determine whether the government has established the requisite nexus
between the property and the offense. If the government seeks a
personal money judgment, the court must determine the amount of
money that the defendant will be ordered to pay.
Subsection (b)(5) then says,
(A) Retaining the Jury. In any case tried before a jury, if the indictment
or information states that the government is seeking forfeiture, the court
must determine before the jury begins deliberating whether either party
requests that the jury be retained to determine the forfeitability of
specific property if it returns a guilty verdict.
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(B) Special Verdict Form. If a party timely requests to have the jury
determine forfeiture, the government must submit a proposed Special
Verdict Form listing each property subject to forfeiture and asking the
jury to determine whether the government has established the requisite
nexus between the property and the offense committed by the defendant.
Fed. R. Crim. P. 32.2(b)(5).
Although the rule’s structure is somewhat confusing, its substance is not.
Subsection (b)(1)(A) tasks the district court with two functions. First, the court
“must determine . . . the requisite nexus between the property and the offense” for
forfeiture of specific property. Second, the court must “determine the amount of
money” for a money judgment forfeiture. Clear enough so far. But then
Subsection (b)(5) creates an exception in jury cases. In cases, “tried before a
jury,” the district court’s initial task is to “determine . . . whether either party
requests that the jury be retained to determine the forfeitability of specific property
. . . .” Fed. R. Crim. P. 32.2(b)(5)(A). If neither party makes such a request, the
district court will do the fact-finding for both specific property and money
judgment forfeitures. But if a party requests that a jury determine the forfeitability
of specific property, the district court must submit that question to the jury by way
of a special verdict form.
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The rule says nothing about a jury determining the amount of a money
judgment. By negative implication, a party is not entitled to a jury finding
regarding a money judgment. Instead, “the court must determine the amount of
money that the defendant will be ordered to pay.” Fed. R. Crim. P. 32.2(b)(1)(A)
(emphasis added). Defendant’s argument ignores the negative implication canon,
often expressed in the Latin phrase expressio unius est exlusio alterius. This
canon applies where “items expressed are members of an associated group or
series, justifying the inference that items not mentioned were excluded by
deliberate choice, not inadvertence.” Barnhart v. Peabody Coal Co., 537 U.S. 149,
168 (2003) (internal quotation marks omitted). The Rule’s inclusion of both
money judgments and specific property forfeitures in subsection (b)(1)(A) and its
exclusion of money judgments in subsection (b)(5) was obviously deliberate. So
we cannot read subsection (b)(5)’s jury procedures as applying to money
judgments.
Our reading of the rule accords with precedent. We held in an unpublished
opinion that Rule 32.2 does not create a right to a jury determination for money
judgment forfeitures. United States v. Gray, 443 F. App’x 515, 523 (11th Cir.
2011) (rejecting the argument “ that Federal Rule of Criminal Procedure
32.[2](b)(5) should be read to apply to personal money judgments”). The other
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circuits to address the question have reached the same conclusion. United States
v. Phillips, 704 F.3d 754, 771 (9th Cir. 2012); United States v. Gregoire, 638 F.3d
962, 972 (8th Cir. 2011); United States v. Tedder, 403 F.3d 836, 841 (7th Cir.
2005). Defendant cites only a footnote in a district court case , United States v.
Gaskin, 2002 WL 459005 at *9 n.3 (W.D.N.Y. 2002), for the proposition that Rule
32.2 “gives the defendant the right to have the jury determine the forfeiture if the
case was tried before a jury.” Appellant’s Br. at 55. Defendant misconstrues the
case entirely. In fact, the Gaskin said only that Rule 32.2 allows a jury
determination for the “nexus between the offense and the property to be forfeited.”
Gaskin, 2002 WL 459005 at *9 n.3 (emphasis added). This tells us nothing more
than Rule 32.2 itself already did. We remain persuaded that the court, not a jury,
should determine the amount of a money judgment forfeiture.10
AFFIRMED.
10
Defendant did not raise the Sixth Amendment, but we note that “the right to a jury
verdict on forefeitability does not fall within the Sixth Amendment’s constitutional protection.”
Libretti v. United States, 516 U.S. 29, 49 (1995).
35