United States v. Allan Ross

America, UNITED STATES

Plaintiff-Appellee, ROSS, Defendant-Appellant.

Allan

No. 92-2788.

United States Court Appeals,

Eleventh Circuit.

Oct. BLACK, EDMONDSON and

Before JOHNSON, Senior Judges, and Circuit Judge. Circuit Judge: JOHNSON, Circuit Senior con- appeals his (“Appellant”) Allan Ross vast, multi-party, arising of a out victions cocaine. conspiracy to distribute international review, convictions. we affirm Upon CASE OF THE I. STATEMENT Background Factual A. mari- an international concerns

This case conspiracy spanning juana cocaine and major 1990, involving interna- two 1976 to End the “West drug organizations, tional and Colombian by Appellant Gang” headed Angel Sanchez. drug organization headed headquartered Gang, End The West Dooney Ryan Canada, Montreal, led was 14, 1984. on November murder until his murder, having Appellant, Shortly after Ryan was motel where police at the observed Ryan’s de- and, being unaware staying Leithman, call mise, attorney, Sidney his had to deter- Department the Montreal Police eve- companion that his Ryan if mine April April, been arrested. ning, had Paul as Leith- Ryan’s suspect murder became a April’s police to call alerted phone man’s 25,1984, Ryan. November On presence with in Montreal. by a bomb killed April was two associ- indicated thereafter Appellant Jr., Quitoni, Lafond, ates, John Gaeton in retali- April’s murder he ordered had Appellant Ryan. the murder ation for of the West leader Ryan succeeded Gang. End murder, he Ryan’s time of At the deal, a cocaine negotiating Quitoni been had consummated. subsequently which Homan, Sheketoff, Kimberly L. Robert Allardyce, the Quitoni James Through Lawson, Ot- Homan, W. James & Sheketoff completed deliveries Gang several End West MA, Boston, Lawson, eri, Weinberg & to Canada. Florida from South of cocaine appellant. Beach Harbor the Marriott May Florida, Lauderdale, Allardyce in Ft. McGee, Hotel Burrow, Asst. L. David Alan (Appel- Elaine Cohen Appellant, met Tallahassee, FL, appellee. Attys., wife), Singer, Guy juana lant’s David and Jean States, into the in late Trepanier.1 Sanchez, Angel Pompo Sanchez, William Klein, Blackledge, Lazara, Mark Robert Quitoni testified within a week after Robert Moore met to discuss Sanchez’s first meeting, Trepanier asked him to come to load of cocaine. organization Sanchez’s flew Windjammer in Lauderdale-by- Resort in its first cocaine load in February 1982. supply Quitoni the-Sea to him a pistol. gave Roberto Aspuru and Raul stored the pistol Trepanier Raymond import- Des- ed cocaine in prior Florida Fosse, to its distribution. present. Early who was also the next state, morning, agitated in an Trepanier Sabio, David who highly involved in Quitoni called and asked him to come to the importations, testified that he arranged a Windjammer There, Trepani- to assist him. meeting between Blackledge and Appel- Quitoni er and DesFosse told they lant to enable supply Sanchez to cocaine to rat,” Singer, “the killed David on behalf of Appellant. Blackledge thereafter introduced Singer potential because was a Appellant. Moore to According Moore, against Appellant drug witness and mur- Appellant agreed huge, to make biweekly charges. They der further admitted shoot- purchases of Aspuru cocaine. Roberto testi- ing police previous officer the night, where- fied that organization the Sanchez supplied upon Quitoni Trepanier drove and DesFosse Appellant approximately 300-400 kilograms airport. Appellant to an Quito- later thanked during cocaine this time. In Appel- aiding ni for escape Trepanier and lant met with Sanchez to delivery discuss the DesFosse.2 large of a shipment cocaine to Canada. Shortly 10, 1985, midnight May after on In Spring the Sanchez organi- Trooper Michael Foti of Highway the Florida zation recruited Bertram arrange Gordon to stopped Toyota. Patrol a maroon As Foti a deal Appellant. with Gordon met with approached door, the driver’s side the driver Appellant at Blackledge’s home several times shot, wounding fired in leg. Foti his in eventually and they agreed Ap- morning, Later that a K-9 officer with the pellant import would three loads of cocaine Ft. Department Lauderdale Police tracked Canada, from Colombia to through the Unit- two individuals who had fled from a maroon loads, ed States. The each consisting of Toyota to the area a witness had been approximately kilograms cocaine, 600 were shortly assaulted after shooting of Foti. flown from Appellant’s Colombia to employ- Trepanier That witness identified man Nashville, ees in July Tennessee. pistol who aimed a at him running while Gordon Canada, left the United States for man; police down street with another where he served as a middleman in certain of found the revolver kill Singer used to in the Appellant’s drug transactions. Toyota. Singer’s maroon body was found day, the next and the medical examiner de- summer, Angel That Sanchez sent two Singer’s termined that death occurred Europe, boats to containing the “Finesse” May 10. An Singer associate of testified that kilograms 146 “Big cocaine and the John” shortly death, Singer’s before he overheard containing 600 kilograms of cocaine. Work- Singer’s telephone side of a conversation in ing Appellant, Trepanier was to off-load Singer upset which was because Leithman the “Finesse” cocaine and distribute init claiming was Singer police was a infor- Europe. “Big load, Of the John” although mant. targeted Mafia, some was for the Sicilian Meanwhile, Angel majority large Sanchez ran a scheduled distribution in operation drug Athough Spain by Colombia. ini- Appellant. Appellant sent other tially organization only smuggled employees mari- Trepanier; however, to assist 1. Records from the Registration Marriott Hotel showed that 2. Windjammer records at the con- Cohen, Leithman, Appellant, Trepanier's Trepanier stay firmed April and there from 8, 1985, through May Trepanier’s stayed April through there car early from late rental period contract for that indicated May that a “Cohen” residing at the Marriott Harbor Beach Hotel had agency. referred him to the rental History ar- B. Procedural made authorities Spanish Portuguese cocaine.3 the “Finesse” sitting seized grand rests and February On returned District of Florida in the Northern sailing, ships’ with Contemporaneous against superseding indictment a three-count observing Police National Spanish him, oth- along with two charging Appellant, Le- and Francois agents, Sabio Appellant’s continuing in a I, engaging with in Count ers wire- Police National Spanish The Boeuf. in violation enterprise, criminal with accordance telephones in tapped various and, along (West Supp.1994), § 848 U.S.C.A. meeting Trepanier observed law and Spanish III, II and in Counts fourteen others with airport Malaga, Spain Appellant at distribute, and import, to conspiracy to police Spanish January 1988. in late marijuana to distribute possess with intent law, wire- Spanish then, again pursuant 21 U.S.C.A. cocaine, in violation Tran- telephone. hotel Appellant’s tapped (West 841, 846, & §§ 962 & pre- wiretaps were various of these scripts pretrial mo- government’s Upon the Supp.). incriminating conver- showing trial, sented Appel- disqualified tion, district LeBoeuf, Sabio, Appellant, between sations him representing counsel lant’s chosen asso- and his Angel Sanchez Blackledge, and Appellant’s denied also The court at trial. police Spanish Simultaneously, the ciates. evi- government certain motions exclude Angel between meetings Madrid observed bombing in Montre- concerning dence organi- members Sanchez shooting of Singer, al, the murder and Sabio. zation, including LeBoeuf (2) foreign business trooper, state the Florida records, transcripts of conversations evi- presented trial, At Spanish National by the Spain intercepted to intervene attempts Appellant’s dence of Appellant’s over granted, The court Police. conspira- drug investigation of the police the em- motion to government’s objection, the Flanders, clerk a law John cy. Specifically, jury, which selected anonymous panel an DeLe- attorney Kenneth Ft. Lauderdale to jury trial held a court 1992. The April on in late to Montreal he flew gal, testified May through April from the about with Leithman to consult guilty on of a verdict jury returned when the Although representation Gordon. possible court July the In counts. all three pay- who was told Flanders never Leithman life concurrent to three Appellant sentenced Ap- assistance, see did Flanders ing for this dollars, million sentences, ten pay fine of to a At Leithman’s office. pellant in Leithman’s su- of confinement the cost pay and to January to Holland flew request, Flanders pervision. al- representation, Gordon offer to incarcerated, currently is Appellant, who contact prior had no though DeLegal August appeal on timely notice filed (1) Flanders testified Gordon Gordon. following issues the Appellant raises 1992. by “his attorney retained an to be claimed (1) court erred the whether appeal: on (2) him, ad- Flanders represent friends” tape transcripts of into evidence admitting enforcement law talk to not to vised him inter- conversations telephone recordings Appel- (3) claimed authorities, Flanders (2) Police; National by Spanish cepted the money. him provide lant would 1985) (West is § 3505 U.S.C.A. whether (3) constitutional; the court abused whether the Broward Dale Chris Detective limiting recross- Appel- by arrested Department its discretion County Sheriffs (4) examination; court abused the Ft. Lauderdale. whether 1991 in October lant on anonymous by empaneling Dale a discretion offered its jail, En route discre- (5) its court abused by jury; Dale: “Not whether paraphrased bribe, stating, as Appellant’s choice disqualifying by I nice if tion would, it sure would I but its (6) counsel; the court abused whether you $200,000 would or so you give could Appel- admitting evidence discretion comment. ignored go.” Dale let me law enforcement cocaine, Dutch was arrested Gordon Sa- of the “Finesse” the seizure 3. After February Holland, on authorities where Spain for fled bio and Gordon acts; lant’s violent whether the court findings court’s of fact for clear error and the by refusing erred pattern to deviate application of the law to those facts de novo. review, Upon Moreover, instructions.4 Ap- all of Id. the court’s determinations of pellant’s fail. claims evidence’s admissibility are not disturbed ab- sent an abuse of discretion. United States Cohen, Cir.1989).

II. ANALYSIS The absence of audiotapes A. Transcripts Admission con taining original recorded statements is Spain, When inwas he met Nonetheless, troublesome. we differ -with alleged several of his coconspirators and Appellant’s contention that the court should arranged importation for the and distribution have transcriptions excluded the of the tele investigating cocaine. Appellant, phone conversations that occurred in Spain Spanish National Police installed court-or grounds. best evidence Federal Rule of wiretaps dered on telephones by Appel used provides prove Evidence that “[t]o lant and coconspirators. certain of his Some content of writing, recording, photo of the recorded conversations were in En graph, original writing, recording, or glish, Spanish. Spanish others in Na photograph required, except as otherwise tional Police made transcripts of the record provided ... in these purpose rules.” The ings, destroyed which then in the ordi the best prevent evidence rule is to inaccura nary objection, course of business.5 Over cy and fraud when attempting prove district permitted writing. contents of a 1001 ad Fed.R.Evid. English-language introduce transcripts of visory However, committee’s note. intercepted thirteen and recorded conversa original of a recording has been lost or producing tions without the underlying tape destroyed, original required not recordings.6 other admissible, evidence of its content is Appellant contends that proponent unless the destroyed lost or (a) court abused its discretion in admitting original 1004(1). in bad faith. Fed.R.Evid. transcripts pursuant to Federal Rule of Once satisfied, the terms of Rule 1004 are (b) Evidence 1004 and in admitting them the party seeking prove the contents of apart procedures from the set out in United recording here, the the government may — — Onori, (5th Cir.1976) States v. 585 F.2d 938 any do so by secondary kind of evidence. (2) (quorum), transcripts’ See, and the e.g., Gerhart, admission United States v. 538 F.2d (8th violated the 807, 809 Due Process Cir.1976); Clause of the Fifth JACK B. WeinsteiN & Amendment to the United States Constitut MARGARET A. BERGER, 5 EVI WEINSTEIN’S ion.7 We review the denial 1004[01], § of a motion (1993). to DENCE at 1004-4-1004-5 suppress a question as mixed of law and Finally, party fact. against the whom the second Hooshmand, United 725, States v. ary being evidence is bears bur offered the (11th Cir.1991). 735 We review the district challenging den of admissibility. its United Appellant's 5, 4. lists aiy Sanchez, brief twelve issues. (4) For the Angel between Sabio and clarity, 18, sake of our discussion January consolidates his between Sabio an and unknown (5) 20, claims. person, January summary of LeBoeuf conversation, 23, (6) January between LeBoeuf Airlines, (7) 25, and January Iberia between Gor- Only portions 5. tape-recorded of the conversa- 27, (8) persons, January don tions, and unknown be- "important" those deemed or "interest- Sabio, (9) 30, Blackledge January tween and ing,” were transcribed. (10) Appellant Trepanier, January between and 30, (11) Appellant Blackledge, between and Janu- transcripts prepared The through pro- were a 30, ary (12) Appellant Blackledge, between translation, and, transcription, cess of the case 3, February Appellant Blackledge, between originally English, conversations conducted (13) 3, February between re-translation. Blackledge. transcripts following reflected the 1988 4, January conversations: life, between person deprived Sabio and 7."No shall ... be liber- Madrid,” (2) 5, "a Colombian in January ty, be- property, process or without due of law”. person, Const., tween Sabio an unknown Janu- U.S. amend. V. 1514 denied, (11th 1967), cert. 88 Garmany, 389 U.S. 938 S.Ct.

States v. denied, and cert. Cir.1985), 106 cert. 19 L.Ed.2d 389 88 L.Ed.2d 19 L.Ed.2d 856 (1968), comparable with facts to those of this Here, requirements all Rule 1004’s case, upheld the Circuit the use of a Second transcripts the constituted are met because transcript secondary the as evidence where “the of ... re “other contents evidence” transcript recording from which the derived destroyed” or cording[s]” that had been “lost accidentally the had been erased and drafter See through government. no fault of the transcript accuracy. of the testified to its 1004(1). First, prosecution the Fed.R.Evid. Similarly, the F.2d at 442-43.9 tran of the cas at fault for the absence was not only scripts were admitted here after Spanish Po National tapes, sette which original recordings could not be located due procedure.8 destroyed part of routine lice procedures Spanish to standard Na Indeed, had con prosecution never Police, Spanish police tional and the officers Second, transcripts tapes. trol of the recordings initially who transcribed were because constituted admissible best evidence cross-examined counsel. transcripts evidence of the contents Moreover, ample note recordings, misplaced destroyed opportunity transcripts’ attack credi directly on audiotapes. The two cases most See States v. bility jury. United before the point—both involving transcripts of conver Howard, (11th Cir.1992) F.2d ad audiotapes—support sations recorded on curiam) (per (suggesting availability transcripts. negligence mission of the In a agent action, monitoring purpose at trial furthers Eighth Circuit held prevent rule in prov best evidence fraud original missing, transcript recording is recordings ing contents of because defendant may prove used to of the the content Co-op, may Wright agent’s cross-examine act Farmers recording. abilities and ions).10 Cir.1982). Accordingly, properly ad Maxwell, (2d States v. into transcripts 383 F.2d 437 Cir. mitted the evidence. conversation, underly- phone dispute partially 8. There is some whether all when inaudible ing destroyed. Spanish recording tapes tape have been in fact of the conversation was also Miguel jury. Police Blanco testified played National officer for the 953 F.2d at 612-13. Con- prepared Spanish transcripts that versely, that he represent whereas the officer in Howard testified intercepted Sabio's conversations over about overheard, content of conversations he had telephone tape copied line onto a reel-to-reel govern- knowledge here the Blanco, tapes. According onto cassette exclusively ment’s witnesses resulted ing from hav- tape destroyed master and the cassettes were recordings, personal listened to the not from Spanish pursuant to standard law enforcement Similarly, observations conversations. procedure such that neither existed at the time of Onori, we held that the trial court need not Spanish Joaquin tried. National Officer Police transcript tape recording decide whether of a prepared Spanish testified that he Manich transcripts transcript given is accurate before that to the represent conversations inter- jury’s understanding aid record- Appellant's telephone cepted over line. He tran- as, ing, long recording, along so with the each conversations, portions those which scribed party may transcript. submit version of its a tape were a transferred from master reel-to-reel apply 948. Onori does not to this case to cassettes. testified that he believed Manich original recordings because the are unavailable. tapes pursuant existed to stan- cassette still maintains, Appellant authority, also without procedure. police dard Faced with this conflict- that, applies, even if best evidence rule ing testimony, the court that the cassette found transcripts should have been excluded as inad- tapes prosecution. We unavailable However, hearsay. missible not did agree. 549, Wright Co-op, See v. Farmers by concluding abuse its discretion that the state- (8th Cir.1982) (resolution or of lost by transcripts ments in the were made either abuse destruction issues is reviewed for tion). of discre- alleged coconspirators or his thus and as, respectively, were admissible admissions or coconspirator upon by Appellant inappo- 9. The cases relied are statements. Fed.R.Evid. Howard, 801(d)(2)(A) (E).& site. In United States v. 953 F.2d 610 1992) curiam), (per we held Cir. testimony 10.Appellant supporting inapplicable best cites law his evidence rule was no case concerning process by telephone a ad- the contents of conversa- claim that the court denied due mitting by person transcripts. We tion the tele- conclude that this who monitored H.R.Rbp. Foreign B. Admission Records ed.” No. Cong., 98th 2d Sess. 3, reprinted in 1984 U.S.C.C.A.N. The introduced into evi Congress 3581. simple, intended create “a foreign records, dence certain pur business inexpensive substitute for the cumbersome § suant to 18 U.S.C.A. 3505.11 Section 3505 expensive procedures” formerly required foreign allows the admission of records of for the foreign regu- admission records of regularly activity if supported by conducted H.R.Rep. larly activity. conducted No. meeting an affidavit specifically delineated Cong., 98th reprinted in 2d Sess. standards.12 contends that section U.S.C.C.A.N. at 3580. Because the 3505 violates the Confrontation Clause of the foreign records foreign were created in Sixth Amendment.13 states where a United States district court’s part As Comprehensive subpoena powers extend, Crime Con- see Fed. do not 17(e)(2), trol Act of Congress designed the hear- the statute establishes R.CRIm.P. say portion records’ closely of section 3505 to trustworthiness can track by shown an affidavit containing conditions exception the business records hearsay analogous 803(6).15 to those set out in Rule contained in Federal Rule of Evidence 803(6).14 3505(a)(1) Subsection “should be The central issue is whether the use of an interpreted in the same manner as the com- affidavit to foreign authenticate business rec- 803(6) parable language in interpret- Rule ords offends the Confrontation Al- Clause. merit, (2) particularly light claim is without "foreign certification” means a written Appellant’s ability govern- to cross-examine the signed declaration made foreign in a ment witnesses who country by testified about the contents foreign the custodian of a record tape. regularly activity conducted or another that, qualified made, person falsely if would 11. immigration subject These records included Aruban penalty the maker to criminal under records, records, Spanish and Italian country; hotel the laws of that passport applications, currency business, institution, Canadian ex- “business” includes records, change records, association, registration profession, car occupation, and call- phone kind, ing every tolls. whether or not conducted profit. provides pertinent 12. part: The statute 13. prosecutions, “In all criminal the accused § Foreign regularly 3505. records of con- enjoy shall ... to be confronted with activity ducted Const., against the witnesses him”. U.S. amend. (a)(1) proceeding In a criminal in a court of VI. States, foreign regularly the United a record of record, activity, copy conducted or a of such following by hearsay are not excluded shall not be as evidence excluded the hear- rule, though even the declarant is available as a say foreign rule if a certification attests that— witness: (A) made, such record or near the time of the occurrence of the matters set forth, (or information transmitted regularly activity. Records of conducted A by) person ters; knowledge a of those mat- memorandum, record, report, compila- or data tion, form, acts, events, conditions, (B) kept such record was in the course of a opinions, diagnoses, made at or near the regularly activity; conducted business by, by, time or from transmitted infonnation (C) activity the business made such a record person knowledge, kept if in the course of regular practice; as a (D) regularly activity, conducted business and if original, if such is not the record such regular it practice was the of that business duplicate original; record is a memorandum, activity ord, report, to make the rec- unless the course of information or the method compilation, or data all as shown preparation or circumstances of indicate lack testimony qualified or custodian other of trustworthiness. witness, unless the source of information or (2) foreign A certification under this section preparation the method or circumstances of duplicate. shall authenticate such record or indicate lack of trustworthiness. The term paragraph “business” as used this association, in includes (c) section, business, institution, As used in this the term— profession, (1) "foreign regularly kind, record of occupation, calling conducted every of whether memorandum, activity” report, means a rec- profit. or not conducted for ord, form, compilation, 803(6). or data Fed.R.Evid. acts, events, conditions, opinions, diag- noses, foreign country; 3505(a) 803(6). maintained in a Compare § with Fed.R.Evid. 1516 supported it is exception,’ or hearsay where to yet had occasion has not though this Court guarantees particularized ” showing of by ‘a to every federal question, this address Wright, 497 Idaho v. trustworthiness.’ 3505 section held that has issue consider the 3139, 3147, 111 816, 805, 110 S.Ct. U.S. Clause. the Confrontation with comports Roberts, (1990) 448 1466, (quoting Sturman, L.Ed.2d 638 951 F.2d v. States United

See 2539). — 66, “Admission 100 S.Ct. at denied, at U.S. (6th Cir.1991), U.S. cert. 1490 exception sat- hearsay firmly rooted (1992); a under 2964, L.Ed.2d 586 -, 119 112 S.Ct. of relia- requirement constitutional 1073, Miller, 1077- isfies 830 F.2d v. States United long- weight accorded 1033, bility denied, because (9th Cir.1987), 485 U.S. cert. 78 experience judicial legislative (1988); standing Unit 1592, 907 L.Ed.2d 99 108 S.Ct. certain assessing the trustworthiness 258, 276-280 Gleave, F.Supp. v. 786 ed States 817, at Id. types of out-of-court statements.” Hing v. (W.D.N.Y.1992); States United hearsay However, (E.D.N.Y. at 3147. 110 S.Ct. 521, Chan, 522 F.Supp. 680 Shair exception under State, exceptions are admitted 331 Md. 1988). v. Chapman also See presump they are firmly-rooted, (1993) not that is (holding that 676, 678-86 A.2d 628 for Con inadmissible tively unreliable state admitted under statements out-of-court ex be purposes must frontation Clause to estab of affidavit use permitting statute guarantees of particularized absent requiring cluded account without bank status of lish 66,100 Roberts, at 448 U.S. trustworthiness. guar testify bore sufficient employee to bank of trustwor guarantees at 2539. These require S.Ct. satisfy to of trustworthiness antees is the evidence Clause, be such must in thiness Confrontation of federal ments a under admitted as evidence equally reliable upheld the have courts federal part because hearsay exception ensure firmly 3505). rooted agree those We similar section through cross-examination confrontation is 3505 that section and conclude authorities Wright, believability. its add little to would unconsti nor per se unconstitutional neither (citation 821, 110 at S.Ct. 3149-50 at 497 U.S. case. tutionally applied in this Strickland, omitted). v. United States ([9-11] Amendment Sixth T he (7th Cir.) (“[Section] 3505 831 935 F.2d States absolute. United is not confrontation question change the not benchmark did Cir.1994) (11th Deeb, 1537 v. admis involving the every situation Chapman, (citing States v. United the docu documentary do evidence: sion of Cir.1989)). v. Rob 1326,1330 See Ohio cert. reliability?”), the indicia ments bear 56, 65-66,100 2538- erts, S.Ct. — -, denied, 116 112 S.Ct. U.S. (1980) (noting not all 39, L.Ed.2d 597 — (1991), and cert. L.Ed.2d 265 Sixth incongruous hearsay is evidence -, 116 L.Ed.2d 112 S.Ct. U.S. Amendment). the introduction Even when (1992). hearsay denies defendant evidence records of business admission The against a witness to confront opportunity 803(6) firmly-rooted Rule is pursuant if him, Clause satisfied the Confrontation therefore hearsay rule and exception to hear establishes prosecution Clause. not violate the Confrontation unavailable, does id. at say declarant States, 483 Bourjaily hearsay 2538-39,16 state S.Ct. 2782-83, L.Ed.2d 182-83, reliability” neces the “indicia ment bears 803(6), However, unlike Rule basis a sufficient sary give require the not caretaker 3505 does section verity the earlier statement. evaluating in court appear records of the business 65-66, at 2538-39. Id. as a qualify not and, thus, does section ‘indicia “that the has Supreme stated Court As the exception. hearsay “firmly-rooted” inmet could reliability’ requirement noted, of the codification has Supreme Court hear circumstances: either of two qualify it not alone hearsay exception does a firmly rooted ‘falls say statement within 74, Id.., at 100 S.Ct. if, U.S. at trial. 448 attendance as to be unavailable is considered 16. A witness good here, despite government’s at is the case efforts, procure witness’ it is unable faith

1517 presumption reliability. Wright, for pose See the recordkeepers challenge 817-18, 497 at 110 S.Ct. at If 3147-48. records. case, that were the then the Confrontation 830 F.2d at 1077-78. This reasoning applies protections increasing- Clause would become equal force under the facts of this case. ly Congress ephemeral as the individu- —and that, Accordingly, applied we hold Ap- in legislatures fifty al of all states —could effort- pellant’s case to foreign admit kept records lessly scope narrow the of the constitutional in ordinary business, course of section Therefore, by legislative ban enactment. our 3505 is constitutional.17

inquiry is whether section 3505 bears suffi- guarantees cient of trustworthiness to over- C. Limitation on Recross-Examination come the Sixth Amendment’s constitutional admissibility hearsay. to the permitted

hurdle The district court Ap pellant to cross-examine all at witnesses concluding In in bank records great length; however, Appellant claims that question in Miller bore indicia of sufficient the court committed reversible error im reliability, the Ninth Circuit stated: posing an ban on absolute recross-examinat ion,18 novelty particularly of the statute is to in regards admit the to the denial records without confrontation the de- government recross-examination of witness recordkeepers. fendant with the No mo- David Herrera.19 The defendant must be suggested permitted tive lead bank would sufficient cross-examination to al distort, change, officials to manipulate adequately low a assess the witness’ otherwise, the records at issue here. credibility; The record- any limitation on have, keepers penalties under criminal in cross-examination was error. United States countries, (11th their own Lankford, 1545, asserted that the rec- v. 955 F.2d Cir. 1992). kept are in ordinary Subject ords records Amendment, to the Sixth course of business. Examination of the trial court has discretion to limit recross- recordkeepers by counsel for defen- Beale, [the examination. See United States v. — reasonably expected 1412, dant] could not Cir.), denied, cert. anything U.S.-, establish more or than that. less 112 S.Ct. 116 L.Ed.2d — inaccurate, If denied, the records in U.S.-, fact it 264, 116 cert. 112 S.Ct. (1991). within power [the defendant’s] was to de- L.Ed.2d 217 contends, alternative, 17. Appellant in the Gibraltar The contested bank. documents served immigration admission Aruban testimony records as additional corroboration of of three government violated both the Confrontation Clause and sec many Appellant's witnesses that they computer tion because coconspirators consisted particular had bank accounts at a print-outs prepared purposes litigation. light overwhelming bank. evidence claim; reject trial, We the court did not abuse its presented Appellant’s we need not rule admitting discretion in broad Aruban rec whether the admission of these bank records 3505(c)(1) § (defining foreign ords. discretion, because, records constituted an abuse of regularly activity conducted worst, to include “data their admission was harmless error. See form"); compilation, United States v. Her Hawkins, States nandez, (10th Cir.1990) 1512-13 (11th Cir.1990), denied, cert. 498 U.S. 803(6), (holding long that under Rule "so as the (1991). L.Ed.2d 696 original computer compilation pre data pared pursuant duty to a business in accordance note, initially, 18. We that the court did allow regular practice, business fact that some redirect examination. copy printed hard offered as evidence was admissibility."), purposes litigation does not affect its Spanish police 19. Two officers testified t. cer January they Appellant, late observed Tre- 113 L.Ed.2d 220 Sabio, LeBoeuf, panier, Blackledge, and Gordon dining together further Spain shortly maintains that the court in southern after admitting its discretion abused into evidence Portugal. the arrival of the "Finesse" in On Herrera, pertaining certain bank records in Gibraltar redirect examination of elicited, allegedly time, drug testimony accounts used to launder monies. for the first that Herrera through present along These records were introduced mony Spanish the testi had police been with the who, Portuguese police of a armed officer at the surveillance and restaurant that Herrera warrants, with search only Trepanier. obtained from the seen Ross and them 1518 redirect, cross-examination, ited Herrera the court a to from on opposed

As right no constitutional to abridged a defendant has the Confrontation Clause. fortiori v. United States Mor recross-examination. (5th Cir.1973).20 1385, ris, A 1387 485 F.2d However, subject violation is have a limited nonetheless does defendant Hawkins, F.2d analysis. error 905 harmless new right to recross-examination required if, assum at 1493. Reversal is not on examina brought out redirect matter potential ing damaging of recross-exami States, v. (citing Id. Hale United 435 tion. realized, fully nation the error was was (5th 737, Cir.1970), cert. F.2d 749-50 beyond a reasonable doubt. Dela harmless 1680, 29 142 91 S.Ct. L.Ed.2d 402 U.S. Arsdall, 673, 684, 106 ware v. Van 475 U.S. (1971)). Indeed, the Third Circuit recent as (1986). 1431, 1438,89 674 S.Ct. L.Ed.2d matters are ly held: material new “When determining harmless factors we consider examination, brought out redirect on of importance ness include “the the witness’ of the Sixth Confrontation Clause Amend case, prosecution’s testimony in the whether party opposing ment mandates cumulative, testimony presence on given right of recross-examination corroborating of or con absence evidence v. Riggi, new United States those matters.” tradicting testimony of the on witness (3d Cir.1991) (emphasis 1375 points, material the extent of cross-examina added). Baker, v. 10 Accord United States ... permitted, tion the overall otherwise (9th Cir.1993); F.3d 1404-05 prosecution’s strength of the ease.” Id. We Caudle, v. 606 457-58 States F.2d hold, factors, analysis on our of based these Cir.1979). pro The Confrontation Clause beyond a reason the error was harmless “opportunity for tects the defendant’s effec cross-examination,” First, v. Appellant tive Delaware Fenster able doubt. makes no show er, 15, 20, 106 88 ing opportunity for further recross-ex curiam), (per L.Ed.2d “is have affected the amination Herrera would believability principal means which the overwhelming given outcome of the ease Alaska, a witness” is tested. Davis favoring degree prosecution. of evidence 308, 316, 1105, 1110,39 L.Ed.2d addition, import new evidence words, In other the absence of brought out on examination of the redirect proper threatens the ultimate confrontation Further, was, best, minimal. al Herrera integrity fact-finding process. Rob though oppor the court denied erts, Thus, 448 U.S. at S.Ct. at 2538. tunity Herrera, the court to recross-examine allow examination on new materi redirect way prevented Appellant calling in no from deny on the al but recross-examination and questioning Herrera his own as witness same material violates the Confrontation directly him in Portu about his observations Caudle, Clause. See Hale, gal. (preven 752 n. 22 435 F.2d at (“Where, here, brought as new matter is out have tion of recross-examination “would not examination, on redirect the defendant’s first prevented appellant confronting his ac truthfulness, opportunity test the accura cusers; only it would have affected the order testimony cy, on completeness of confrontation. All witnesses deny To recross examination. recross exam equally appellant to the and could available on first out on ination matter drawn redirect him have been called the witness stand deny is to the defendant questioned examination as to direct matter.”) as to that new cross-examination desired.”). any point Accordingly, the omitted). he (citations We therefore conclude Appellant’s to limit recross- court’s decision by denying Appellant opportunity to error.21 regarding material elic- examination Herrera was harmless recross-examine new briefs, Prichard, reading City 21. From a broad 20. In Bonner v. disputes preclud- (11th Cir.1981) (en we ing he also banc), infer that court's adopted Any recross-examination of other witnesses. precedent all decisions the former Fifth Cir- complaint is merit as has such without prior to cuit rendered October thereupon prejudice shown no whatsoever.

1519 3029, Empanelment Anonymous Jury (1992); D. S.Ct. 120 L.Ed.2d 900 United Thomas, 1359, 1362-65 (2d States v. 757 F.2d motion, Upon government’s Cir.), denied, 819, 106 66, cert. 474 U.S. S.Ct. anonymous jury an district court selected 67, (1985), denied, 88 L.Ed.2d 54 and cert. Appellant’s trial. The court ordered that the 818, 78, 479 U.S. 107 S.Ct. 93 L.Ed.2d 34 names, addresses, juror’s places employ (1986). Crockett, Accord United States v. ment, spouses’ places names and of em (7th 1204, Cir.1992), 979 F.2d 1215-17 cert. ployment during not be disclosed voir dire or — denied, -, 1617, U.S. 113 S.Ct. 123 any point thereafter.22 As a further secu (1993); L.Ed.2d 176 Scarfo, United States v. measure, rity the court also ordered that the (3d 1015, 1021-26 Cir.), denied, 850 F.2d cert. jurors, sequestered, who were not meet each 910, 488 U.S. 109 S.Ct. 102 L.Ed.2d 251 morning in a central location to which federal (1988).24 Varella, United States v. 692 Cf. marshals would return them at the close of (11th Cir.1982) F.2d 1355 (upholding day they the court and that remain government’s objections during testimony to custody throughout of the marshals the court names, addresses, disclosure of occupa day. empanel The court’s decision to an government witnesses), tions of two cert. de anonymous jury premised finding was on its nied, 463 U.S. 103 S.Ct. 77 (1) Appellant charges faced serious denied, L.Ed.2d 1392 and cert. 464 U.S. dangerous conduct in large- the context of a (1983). 78 124 L.Ed.2d Fur (2) organization, criminal scale ther, a lower empanel court’s decision to an jurors, able to harm Ap threaten and/or anonymous jury is entitled to deference and pellant previously attempted to interfere subject to abuse of discretion review. See judicial process, with the harmful Paccione, 949 F.2d at 1192. Accord United pretrial publicity had occurred. Thornton, (3d States v. 1 F.3d 154 Cir. empanelment anony contends of an 1993); Crockett, 979 1215-16. See jury right mous presump violated his to the Daniels, v. States tion of innocence under the Fifth Amend (district Cir.1993) court has wide dis right ment and his to trial an impartial determining questions cretion in which will jury under the Sixth Amendment.23 More dire). during be asked voir over, Appellant asserts that the cau court’s Unquestionably, empanelment tionary instruction failed to alleviate this al anonymous measure, an is a drastic one legedly unconstitutional effect. Under the only which should be undertaken limited case, reject Appel circumstances carefully delineated An circumstances. lant’s claims. anonymous jury specter raises the Anonymous jury empanelment is an issue dangerous person defendant is a from whom Circuit, impression of first in this our but jurors protected, thereby impli must be analysis guided by methodology devel cating right the defendant’s constitutional oped in Every other circuits. court that has presumption presump of innocence. The that, considered the issue has held when law, tion of innocence is “undoubted axiomat used, genuinely properly needed and when elementary, ic and and its enforcement lies at anonymous juries infringe do not a defen the foundation of the administration of our rights. dant’s States, constitutional See United criminal law.” v. United Coffin Paccione, 432, 453, 15 394, 403, States v. 1191-93 U.S. 39 L.Ed. 481 — (2d Cir.1991), U.S.-, Williams, cert. See Estelle v. case, names, parties In the usual know the wherein the crime shall have been committed”. addresses, occupations potential jurors, Const., VI. amend. any spouses, well as those of and use this infor- during questions mation probing voir to formulate dire 24. We note that district courts in both the First biases, potential prejudices, Circuit and the District of Circuit have Columbia might prevent juror other considerations that upheld constitutionality anonymous juries. rendering impartial a fair and decision. Pasciuti, F.Supp. United States Edmond, (D.N.H.1992); United States v. prosecutions, 23. "In all criminal the accused (D.D.C.1990). F.Supp. 1144 trial, enjoy speedy public shall to a impartial jury of the State and district 1691, 1692, attempted influence or wit- L.Ed.2d had to intimidate (1976) (“The innocence, nesses, pretrial al- and had been there extensive presumption Constitution, Crockett, in the is publicity about the case. though not articulated (“Ju- our component Scarfo, of a fair trial under F.2d a basic at 1216. See justice.”). presump- system of criminal The criminal [sic] ror’s fears of retaliation from not, however, elimi- appre- does hypothetical; tion of innocence are defendants not such every documented.”) that (collecting from the courtroom reminder nate has hension been charged cases). the the State has defendant Flynn, Holbrook v. criminal conduct. See warranted, anonymity jury Where 560, 567, 1340, 1345, 89 fundamental to an unbi the defendant’s (1986) (holding presence of L.Ed.2d 525 that jury sufficiently guaranteed by the ased armed, troopers state in court- uniformed conduct of a voir dire that can uncov court’s infringement presumption not room is in any bias issues case or to er toward the innocence). Hence, has the Second Circuit Paccione, himself. See the defendant articulated, adopt, following prin- the and Additionally, danger at 1192. that the general, ciple: “In the court not order should jury might the ano the infer that need for anonymous jury empaneling an with- the nymity was attributable to the defendant’s (a) concluding strong that there is reason out is minimized when trial court character the (b) protection, jury the needs and to believe jurors gives plausible nonprejudi the a taking precautions to minimize reasonable hiding for their Id. cial reason identities. any prejudicial on the effects defendant Thus, Thomas, example, in the Second rights are to ensure that his fundamental explanation found court’s that Circuit Paccione, 949 protected.” F.2d at 1192. jurors their to were not to reveal identities anony- empaneling reason an Sufficient press deter unwanted attention “substantial jury to upon found exist a mous has been ly aspersions avoided on the risk showing of fac- some combination of several Taking defendants.” 757 F.2d 1365. (1) tors, including: the defendant’s involve- tact, judge Scarfo, in opposite the trial in (2) crime, organized ment the defendant’s Circuit, upheld by the in instructions Third participation group capacity in a to they jury formed the that would hear testi (3) jurors, past at- harm the defendant’s mony organized about crime and that he judicial tempts process, to interfere with the wanted them to consider the case without that, convicted, potential if defen- they or apprehension that their families lengthy dant will suffer a incarceration and endangered. 850 would be F.2d at 1026-28. monetary penalties, substantial ex- judge that no The further stated there was publicity pos- tensive that could enhance the anonymity basis for concern and that was jurors’ sibility pub- names would become protect to intended interests both expose to or lic and them intimidation government to ensure defendants instance, in

harassment. id. For Pac- fair that both sides received a trial. Id. at cione, the the em- Second Circuit affirmed anonymous jury panelment of an because The court here did not abuse its prosecution had reliable reason to believe the ordering anonymous jury. an discretion strong organized ties defendants had First, Appellant, large-scale the leader a crime, facing lengthy the defendants were organization, actively was involved criminal high monetary penal- prison sentences and Second, organized organiza threatened, crime. ties, killed witnesses had been jurors had the to harm had in been, tion means expected ease and the had could be Third, prior fact committed acts of be, subject violence. publici- to continue of much previously attempted to inter Similarly, ty. Id. at 1192-93. the Seventh judicial by ordering process with the anony- fere Circuit determined use of Singer, potential against death of a witness jury justified govern- mous where the government alleged Appellant. had also pattern mem- ment violence organization, includ- averred before trial there had been bers of defendants’ witness, separate ing incidents of violence directed the murder of the defendants three Moreover, Aspuru, steps of Raul and Roberto the court took at the relatives reasonable any prejudicial potential government witnesses.25 minimize effects on the witness defendant and to ensure that his fundamental also offered bribes rights protected. explained who ar Bertram Gordon and to the officer The court Finally, Appellant Appellant. rested faced it wanted to insulate them improper possibility of a life sentence and exten communication from either monetary penalties. Consequently, side and that its decision was no reflection on sive Thus, correctly strong court found reason to em the defense.27 the court’s careful in- anonymous jury.26 any possible panel an struction eviscerated inference specifically alleged prosecution expected that 25. The Now in a case which is to attract a trial, (1) Appellant’s Aspurus' high shortly degree publicity high-profile before the of and be a home, beaten, case, prudence steps at her sister was accosted dictates certain be children; placed integrity jury, in the trunk of a car with her taken to ensure the of the itself. (2) persons falsely identifying as fed- proceeding themselves Both sides this want to make agents approached Aspurus' eral the uncle and your sure that verdict is based on the law from padlocked employees, two trailer, handcuffed them in a you which will be instructed and the evidence property; and and ransacked the uncle's developed throughout in the courtroom the persons Court, unknown fired shots into the resi- presence course this in the trial of the Aspuru though defendant, dence of another relative. Even attorneys, jury, the the and the government prove the did not that these inci- factors, being by any without influenced other dents were related to or another co- whatsoever. conspirator, properly the court nevertheless con- employed Now one of the methods to ensure establishing anonymous jury. sidered them in an viability jury protect jury of the and to the Crockett, (presence F.2d at 1216 of factor any phone members from unwanted calls or militating anonymous jury judged in favor of is by press by any person contact or concern- court). pretrial perspective from of trial trial, name, ing your is to not make live, work, you you your spouse or where public. procedure anony- This is known as an finding pretrial publicity 26. The court's jury, altogether mous which is not an accurate anonymous jury in this case also warranted an description, emphasize but it does the fact that pre- was erroneous. This case received minimal name, address, your place employment publicity, including newspaper trial two stories Nonetheless, you your spouse for not be disclosed degree will report. and one radio anyone, including government to and the pretrial publicity dispositive is not as to whether attorneys. defense empanel anonymous jury. to an See United Melendez, exceptions, (E.D.N.Y. Now there must be some but F.Supp. States v. First, they jury 1990) are few. clerk has list (ordering anonymous jury despite specifi- use, your only, names for official such as sum- cally finding publici- that case had attracted little moning you jury duty, checking 1993). you (2d ty), op., d without 999 F.2d 538 Cir. aff trial, beginning issuing your jury Rather, determining empan- whether or not to list, however, paychecks. not and This has anonymous jury, el an courts should look to any person will not be disclosed to without an totality of the circumstances. order from this Court. Furthermore, to the extent that the court based Secondly, you placed will be under the finding Appellant's dealings its on with the Sicil Marshal, charge of the United States once the Republican Army, it ian Mafia and the Irish selected; jury tiy this case has been and if Vario, erred. See United States name, cetera, arises, your may the need et (2d Cir.1991) (holding that mere invocation However, disclosed to the Marshal. the Mar- organized groups of names of crime is insuffi any been instructed not to disclose shal has anonymous jury), cert. de cient basis to order personal you any person, information about nied, -, -U.S. 112 S.Ct. 116 L.Ed.2d including Attorney. the United States (1992). We affirm the nonetheless court's case, any potentially high-profile we Now in grounds decision based on the other discussed in anony- subject phone are all to crank calls and text. thing. mous letters and that sort of I want to defendant, protect govern- as well as the 27. The court’s instruction to the was as venire ment, any any part jury belief follows: coming are such communications words, or the other. In other I from one side gentle- THE COURT: Be seated. Ladies and men, don't want the defendant to be characterized you I would to make a comment to like sending anonymous concerning you as someone who would be are to be the manner which jury, you communications to the and I don’t want are selected and the manner in which government going throughout you as some- to be characterized to be treated this trial if jury improp- actually trying one who is to influence the are selected as one of the individuals sitting jury. erly. on the trial Louisiana, repre Aspuru in an sented Roberto arising from the use of guilt Appellant’s was the although Appellant. we Lawson Accordingly, James jury.28 sented anonymous practice of say attorney Appellant, for assisted primary do not mean jury constitu- anonymous alleged, empaneling Oteri. although feel in all cases and Aspuru’s previous tional agreed, that Roberto court circumspect in order- highly courts should be Weinberg provided and Oteri contacts with juries, anonymous empanelment of ing the grounds disqualification firm discretion not abuse its did A trial counsel in this case. anonymous in this case. empaneling an disqualify the defendant’s court’s decision abuse of discretion. counsel reviewed Appellant’s Choice Disqualification E. 153, 163, States, 486 U.S. v. United Wheat Counsel 1699-1700, 100 L.Ed.2d that the dis Appellant next contends disqualification of his counsel of

trict court’s right to his Amendment choice violated Sixth guarantees Amendment Sixth The trial, govern legal representation. At the all criminal “[i]n that criminal defendants pled Aspuru, called Roberto who ment enjoy the the accused shall prosecutions, drug-related charges appertaining guilty to Assistance of Counsel right ... to have the against Appellant. Prior to to the indictment sixty years ago, than for his defence.” More plea, Aspuru this separate from Roberto and recognized that an essen Supreme the Court by Weinberg Martin in a represented ability part right is the accused’s tial of that prosecution in the Dis drug-related Western choice. See Pow to select the counsel of his In connection with this trict Louisiana. of Alabama, 45, 53, ell v. Aspuru Roberto had met representation, (1932) (“It hardly is neces 77 L.Ed. 158 Oteri, $40,000 Joseph paid to Wein with and that, being sary say right to counsel to the representation This ended berg’s partner. conceded, a should be a defendant afforded government Aspuru and the when Roberto of own opportunity fair to secure counsel his plea agreement. into a entered choice.”). Thus, a a criminal defendant has choice, right to counsel of trial, Oteri, presumptive At the law firm of Wein Wheat, 164, 108 and Lawson, repre- S.Ct. that U.S. berg, and the same firm buildings con- anonymous jury where the Court is housed be an is to the use of Now get ducted in a secure environment. a trial. It's that both sides will fair ensure days the when any apprehension Now can all remember being done because of not of, security were unheard but you such measures part this Court that would have the of on which we live. endangered subject improper that is not the world in now pres- to been or your be about You not concerned your names had been Your should if disclosed. sures side, anyone safety trial; safety connected this or the to disclosed to either names have not been all, it, you keep just must not allow these way going and above the we're and that is to you security suggestion any- measures to influence obvious sure that there is no to be verdict; you your and and must anything improper deliberations body's part from either security any proce- manner allow these not in side. you suggest have you anonymously to that fear selected dures fact that are The attempting the any way upon defendant or a reflection the defen- is not in security you. are anyone measures with interfere with the defense or associated dant gov- protect the simply precautionary intended ernment, defendant a mea- defense. It is get as well as all others associated a fair trial. to make sure both sides sure also, wish, proceeding. you may what this to talk to about I security interpreted at the as increased be Indeed, Appellant that trial Many play part concedes "the factors in the a courthouse. decision, his approved judge effort to be even-handed in made an which has been Marshal's instructions,” Court, that type security does not claim by and the this as to anonymous jury working empaneling an limited his personnel who will be number of ability We voir dire. nevertheless conduct trial. instance, searching voir court conducted a anticipated note that publicity For sufficiently enabled types dire that exam- may generated, be the number called, venirepersons length and to obtain fair may ine the impartial jury. who witnesses trial, necessity public that all trials and the (2d Cir.1983). goal Our disqualify hesitate to defense is to discover courts should lawyer loy whether the defense has divided counsel. prevent effectively him from rep alties importance Notwithstanding the resenting the defendant. See United States choice, right is right to counsel of (3d Cir.), Moscony, v. cert. determining In whether or not not absolute. counsel, disqualify the court must defense If L.Ed.2d 984 the conflict could rights: two Amendment balance Sixth attorney improperly cause defense to use right represented to be counsel of choice privileged communications in cross-examina conducted to a defense tion, disqualification appropriate. then In is attorney is free of conflicts of inter an who deed, it disqualification is also true that 160, 108 Id. at S.Ct. at 1697. The need est. equally appropriate if conflict could deter efficient, fair, orderly administration attorney probing the defense from intense justice right to counsel of overcomes the protect the witness on cross-examination to attorney an has an actual con choice where privileged communications former interest, previ flict of such as when he has attorney’s per client or to advance the own ously called represented person who will be short, pro sonal interest. the court must against at a as a witness a current client independent ensuring tect its interest in Casiano, criminal trial. See United States integrity judicial system pre (5th Cir.1991). 1046, 1052 When served and that trials are within conducted exists, actual conflict of interest the client is ethical standards. counsel, effective assistance of denied attorney may disqualified. United the be Here, properly the court concluded that (5th Martinez, 362 States v. 630 Appellant’s counsel of choice suffered insur- Cir.1980), denied, 450 101 cert. U.S. problems. mountable conflict of interest (1981). Indeed, S.Ct. 67 L.Ed.2d 351 First, the Louisiana case in which Roberto disquali potential even a conflict suffices for Aspuru represented by counsel from the Wheat, 164, 108 fication. 486 at S.Ct. at U.S. disqualified conspiracy law firm to involved (“a showing potential 1700 of a serious between, import narcotics and distribute presumption in favor of conflict” overcomes others, among Aspuru Roberto and certain choice). Furthermore, defendant’s counsel of Colombians, government intended to and the attorney if one in a firm has an actual conflict joined conspiracy show that this to interest, impute that to all the of we conflict drugs obtain a source for to distribute firm, attorneys subjecting in the the entire conspiracy in part ongoing of an centered v. disqualification. firm to United States Montreal, Further, at the time the Canada. (5th Kitchin, Cir.), 592 F.2d 904 cert. disqualified Appellant’s counsel of denied, 62 U.S. S.Ct. choice, potential conflict of in- a serious Regulating L.Ed.2d 56 See Rules Aspuru claimed that terest existed. Roberto 4-1.7, §§ 4-1.9 & 4-1.10 the Bar Florida gave money he as a retainer. Testi- Oteri standards). (incorporating above-described mony about this transaction would have conflict, deciding opened potential actual or the door to as de- whether the danger- potential disqualification, fense counsel could either have tread conflict warrants subject ously close to confidential matters at- we examine whether the matter of or, substantially tempting explain transaction alter- representation the first is relat Kitchin, re- natively, improperly could have avoided ed to that of the second. 592 F.2d factors, James, 904; Considering these v. 708 F.2d lated issues.29 see United States Moreover, personal regarding government independent information the averred that it con- charges, proof underlying ... he has templated presenting that an attor- facts his client’s at trial interest.”). ney formerly by Appellant an actual conflict of The fact retained and accused testimony Aspuru obstructing investigation did not elicit in this of lawful Oteri, testimony paid money presence nor of that he had Oteri case met with meeting questions. is raising about the aforementioned inconse- conflict of interest See Gov- quential. disqualification Virgin Zepp, decision whether v. ernment Islands of (3d Cir.1984) ("when perspective proper judged from the defense counsel has by disquali- actual, representation and potential, conflict-free find that there choice of counsel.30 fying first impeded have the trial conflicts that could judicial integrity of and undermined Appellant’s Acts Vio- F. Admission of system. lence hearing argument on the After an actual conflict ex Even (1) testimony regarding kill admission attorney disqualifica subjecting ists execution-style ing April, murder tion, may waive this conflict of the client shooting troop of a Singer, and state attorney con elect to have interest and er, Appellant’s mo the district court denied long so as that waiver is representation, tinue pursuant the evidence to Fed tion exclude voluntary. intelligent, Mar knowing, of Evidence 403. We affirm the eral Rule case, tinez, Appel In this F.2d at 362. may ruling. evidence court’s Relevant unconditionally his expressly waived lant only pro under Rule 403 when “its excluded representation. None to conflict-free substantially outweighed bative value is theless, accept a waiver of a court need not danger prejudice, of unfair confusion Wheat, right. issues, misleading jury, or (holding may trial courts at 1698-99 time, delay, consideration of undue waste of of conflicts of interest to en refuse waivers presentation or needless of cumulative evi representation, protect adequacy sure 403. We have re dence.” Fed.R.Evid. court, preserve integrity and to trial peatedly stated that Rule 403 is an extraordi free from future at judge’s interest to be nary remedy sparingly that should be used adequacy of waiver fairness tacks over it court to admit because allows the exclude trial). Additionally: See, tedly probative e.g., evidence. independent have an inter- Federal courts Chandler, States ensuring that criminal trials are est — Cir.1993), -, cert. conducted the ethical standards within (1994) (No. 2724, 129 L.Ed.2d 848 93- legal proceedings and that profession 1033). Thus, a court’s decision not we review all who observe them.... appear fair to pursuant to exclude evidence to Rule 403 for only interest of a criminal defen- Not v. an abuse of discretion. United States in but the institutional interest dant (11th Sanchez, 1143, 1160 Cir.1993), n — n just rendition of verdicts in criminal cases U.S.-, 1051, cert. S.Ct. by may jeopardized unregulated multi- (1994). 127 L.Ed.2d 373 ple representation. Dekle, 1257, In United States v. (11th Id. at 108 S.Ct. at 1698. As discussed Cir.1985), upheld we 1262-63 above, confronted the court was with several court’s admission of evidence of defendant’s potential of interest. If person actual or conflicts uncharged assault on a third who realized, any marijuana of the above-discussed conflicts allegedly conspired to steal Church, would have rendered the court’s verdict sus- v. the defendants. In United States Cir.), pect Appellant’s assistance of counsel cert. de —nied, -, Accordingly, ineffective. unethical and (1992), by refusing approved we the admis court did not abuse its discretion L.Ed.2d 169 right uncharged murder to show the accept Appellant’s waiver of his sion of Wheat, disqualification. prerequisite is a to reversal of a conviction trial court the time 162-64, right 486 U.S. at 108 S.Ct. at 1698-1700. violation of the Sixth Amendment to coun- See, Richardson-Merrell, e.g., choice. Inc. sel of whether the We need not reach issue Roller, 424, 443, 472 U.S. 105 S.Ct. right erroneous denial of the to counsel of choice J., (1985); (Stevens, 86 L.Ed.2d 340 id. per se reversible error. See United States v. ("[I]n dissenting grounds) a criminal other Urbana, (S.D.Fla. F.Supp. 1556 n. 9 disqualifying lawyer case an erroneous order 1991) (collecting hold circuit court cases that chosen the defendant should result in a virtu- qualified of criminal defendant’s that denial reversal.”); ally Flanagan automatic v. United error to certain counsel of his choice is reversible States, 259, 268-69, Indeed, shown). prejudice regardless whether 1056-57, 79 L.Ed.2d 288 Supreme prejudice has never held that Court district court conspiracy charged as a versations. The admitted the a murder motive for only satisfying Similarly, agree transcripts after itself that act. predicate RICO they although Appellant’s di- were an accurate account of actual con- the court pursuant uncharged in the versations that had been recorded acts was rection of violent wiretap. indictment, Spanish-court-ordered to a The ac- acts were intertwined these Appel- recordings, tual made in were not avail- conspiracy probative drug Further, we able at the time of trial in 1992.1 conspiracy.31 lant’s role in the nothing prejudice “unfair” in the find deciding transcripts Before admit Appellant. Accord- caused to the evidence wiretap of the other evidence contents discretion ingly, court did not abuse its recordings under Rule the district admitting the evidence.32 evidentiary hearing. court conducted an hearing testimony That included from David III. CONCLUSION Sabio, co-conspirator turned Government AFFIRMED. convictions are participated in of the thir- witness who five conversations, none of which teen transcribed BLACK, specially Judge, Circuit with Ross. The district court also concurring: heard from one former and one current officer, Spanish police who had listened to panel opinion. I write I in the concur wiretap recordings original made my hold- express belief our separately transcriptions. Spanish police Spanish admissibility wiretap tran- ing on the participant five identified Ross as a his unique cir- confined to the scripts must be conversations. Numerous other witnesses majority opin- ease. The cumstances of this drug conspiracy tied Ross to the other broadly read so as to allow ion should not be ways. virtually purported automatic admission original wiretap transcripts whenever record- evidentiary hearing, At the Sabio testified missing through no ings a conversation are accurately transcripts matched his that the part faith on the of the Government. bad telephone of the five conversa- recollection dangerous expansive be an That would participated during his time in tions he precedent. I concur here because specifically Spain in 1988. He recalled and because of particular facts of case occurred, each of the five conversations had efforts of the district court the commendable participating party, the name of the other reliability of these tran- judge to ensure the general of the con- and the content each scripts. Further, versations. Sabio testified notes, accurately portrayed in general content was panel opinion the district As the by transcripts. On cross-examination transcripts of thirteen tele- the court admitted counsel, that liter- Spain by Appellant’s Sabio testified phone intercepted in conversations unflattering collo- al translations of certain Spanish National Police. the Several by to address participated quial expressions used others co-conspirators in this case conversations, greeting perfect him were translations Appellant Ross was as a those used, interpreta- than participant in of the con- of the words rather identified as a five enterprise, pursu bombing ducting continuing criminal evidence indicated that the 31. April giving § murder of established as the head ant to 21 U.S.C.A. 848. Instead (2) Singer Gang, instruction, the West End was murdered special instead substantial the court police to silence a infor- at mant, direction Pat ly to the relevant Eleventh Circuit adhered likely trooper the state was shot Jury tern Instruction. This claim is without escape Singer’s murder. incidental to the Lehder-Rivas, States v. merit. See United three acts of violence were committed to All protect (11th Cir.), cert. F.2d U.S.-, 1519 n. 6 Gang and to advance its the West End 121 L.Ed.2d drug sales. charges Testimony were ever indicated that no 1. lastly contends that the district 32. investigation. brought Spain as a result of this specially instructing jury court erred not therefore, is, surprising that the cassette It not unanimously agree three it had to on the that trial. tapes available at the time of predicate required were not acts for a conviction for con important It is to note that the United meanings of those words. He tions of the government played no role accuracy whatsoever of the tran- States further verified preparation in either the destruction noting the unusual nature of scripts by that recordings tapes. or the the master cassette conversations memo- greetings made the question transcripts that these There is no that he also testified rable for him. Sabio requirement origi- that the meet Rule 1004’s transcripts contained say could not that the recording through not be lost bad faith nal every parties in words used the exact part proponent. on the Fed.R.Evid. conversation, but that he believed the conver- 1004(1). that, question giv- There is also no essentially as tran- sations were carried testimony, en Sabio’s admission the five scribed. involving him transcripts of conversations Spanish police officers told the The two agree I cause no concern. admis- they all thirteen district court how made remaining eight transcripts sion of the They that all original transcripts. testified am, however, troublesome. I satisfied wiretapped phone conversations from two evidentiary hearing demonstrated that originally a master phones were recorded on transcripts were indeed reliable. Under tape. Spanish police A officer then listened circumstances, involving the actions of a tape to the and identified conversa- master foreign government and not the United ongoing investiga- tions that related to their government, agree they I States were recordings tion. The of those conversations reiterate, however, properly I admitted. tapes duplicated onto cassette and the holding that our on this issue should be Generally, then reused. tape master unique pre- circumstances confined Spanish language Spanish police made a sented in this case. listening transcript of the conversation while cassette, duplicate to the but on certain occa- transcript directly from

sions the was made tape.

the master The district noted procedures followed fell short of the country by

safeguards provided in this comported Spanish §

U.S.C. but law. ALAPPAT, Kuriappan In re P. Edward E. Averill and James G. Larsen. ample opportunity to

Defense counsel had Spanish police officers in cross-examine No. 92-1381. procedures they front of the on the Appeals, Court of States making transcripts followed in and on the Federal Circuit. accuracy partici- of their identification of the pants. Sabio was also available the de- July testimony accuracy regarding fense for but, surprisingly, transcripts not he was called, testimony presumably because his not

supports accuracy transcripts. In- of the

terestingly, the Government did not bolster reliability transcripts jury of the for the

by re-calling as a after the Sabio witness

transcripts ruled admissible. had been Sabio called as a witness

had been Government

prior proffer transcripts, to the

naturally testimony at that time made no his Thus, transcripts.

mention transcripts

weighed the value of the without testimony supporting benefit Sabio’s accuracy.

their

Case Details

Case Name: United States v. Allan Ross

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Oct 11, 1994

Citation: 33 F.3d 1507

Docket Number: 92-2788

Court Abbreviation: 11th Cir.