United States v. Lupe Gomez

apply in- discretion review standard should present

stead of the rule which excludes the

exercise it. questionable deterrent effect and the

increasing exceptions number to it trans- exclusionary

form the rule into a doctrine may

without It substance. be that the Em- naked, entirely

peror is not but it is indeed just wearing.

time to observe what he is America,

UNITED STATES

Plaintiff-Appellee, GOMEZ,

Lupe Defendant-Appellant.

No. 94-4049. Appeals,

United States Court of

Tenth Circuit.

Oct. Wichlens, M. Assistant Federal Public

Jill (Michael Katz, Public Defender G. Federal briefs), Denver, investigation, an undercover part of the Defender, As her on the with officer, County Deputy Colorado, Defendant-Appellant. Sheriffs Weber for Coleman, began negotiating pur- Douglas Diamond, Gregory Assistant C. marijuana from large quantity chase of (Scott Matheson, Jr., Attorney M. Additionally, pursuant to Utah Salinas. Attorney, him on the (1990), the strike Code Ann. 77-23a-10 Utah, Plaintiff- briefs), City, Lake Salt for a force obtained authorization Appellee. telephone of the home where Salinas ANDERSON, McKAY and Before living the time. BRORBY, Judges. Circuit investigation progressed, the focus As the marijuana away from and toward Sa- shifted ANDERSON, H. Circuit STEPHEN involving cocaine. Informa- linas’ activities Judge. gleaned pursuant to the revealed tion Lupe appeals his conviction dis- Gomez Og- in had a source for cocaine that Salinas 841(a)(1) cocaine, § see U.S.C. of tribution den, or “Burt.”2 known as “Bird” or “Bert” 2, raising § five issues. Mr. and 18 U.S.C. (1) February called a Salinas right his On that he was denied Gomez claims shortly pager and called thereaf- Speedy Trial Act number was speedy to a trial under (2) Amendment; the district by a male who was identified at trial as and the Sixth ter improperly evidence obtained reported court admitted that he was “Bird.” Bird to Salinas (3) wiretap; Utah, in the course of a court-ordered calling Layton, from that he was on his admitting in the testi- court erred X, the district R.Supp. way, and that he had “it.” Vol. interpreter mony government who had of a shortly paged Dep- Ex. 4. Salinas thereafter audiotapes transcription of the assisted in the Coleman, uty indicating that his source would (4) wiretap; the district during obtained soon, arranged and the two for the be there allowing court erred place drug transaction to take at conve- tape-recorded conver- transcripts of the use Ogden. nience store chief; during and sations its case officers observed an individu- Surveillance ques- impermissibly answered district court Gomez, al, approach later as Mr. identified jury when the defendant and tions from the home, speak the two with Salinas as Salinas’s present.1 We ad- defense counsel were not truck, pickup of a and leaned over the bed and, of these issues in turn for the dress each shortly An officer con- depart thereafter. below, affirm the convic- reasons set forth that ducting surveillance at the time testified tion. delivery of cocaine. appeared it to be a Ill at R.Vol. 82.3 BACKGROUND telephone then made series Salinas 1992, Weber-Morgan early Narcot- agent, Deputy Cole- calls to the undercover investigation began an ics Strike Force man, prearranged to the location and drove Salinas, suspected of Rogelio “Roy” who was delivery.4 for the When Salinas verified marijuana. investigation trafficking in This prearranged at the lo- Deputy Coleman was agen- involved a number of law enforcement house, Utah, cation, he returned to his reached into Ogden, in and around the area. cies regarding initially government, the first four the confusion 1. Mr. Gomez raised arose, February appeal. part, Mr. issues in this On because the individual's name brief, supplemental rais- Gomez moved to file En- monitored conversations were at times in ing regarding the district court's an- the issue glish Spanish. Appellee's Br. at and times granted swering jury's questions. We 4. Mr. filed motion on June day. supplemental his brief that same conducting agents on 3. Two were surveillance the street. Salinas's house from house across testimony 2. considerable at trial re- There was R.Vol. Ill at 31-32. garding the individual's the confusion over monitoring the name. Some officers calls "Bert,” deliveiy place at a convenience store 4. The took thought was “Burt" or while the name Salinas's home. located a few blocks from R.Vol. II others identified the caller as "Bird.” 136-37, 143-44; According II at 39. R.Vol. Ill at 11. R.Vol. point Speedy 1. Trial Act pickup at the where he the back of the speaking with Mr. Go- had been previously Speedy requires The Trial Act mez, Ill something. R.Vol. and retrieved the trial of a criminal defendant commence delivery location returned to the 39. Salinas seventy days filing within of the indict point at which kilogram with a of cocaine ment, from the date that the defendant Approximately ten minutes was arrested. officer, judicial appears first before a which later, again past drove the Sali- 3161(c)(1). § ever is later. 18 U.S.C. point gave officers nas residence at which remedy for a violation of the Act is dismissal pursuit and arrested him.5 3162(a)(2). of the indictment. Id. Howev er, self-executing. the statute is not It charged in a federal com- Mr. Gomez was places on the defendant the burden of assert 11,1992, brought and he was plaint on March statute, explicitly pro a violation of the 19,1992. magistrate judge on March before a “[fjailure viding that the of the defendant to on March A federal information filed prior entry move for dismissal to trial or charging indictment him with distri- a federal plea guilty or nolo shall contendere consti April of cocaine was returned on bution tute a waiver of the to dismissal under arraigned April he was added); (emphasis this section.” Id. see continuances, Following a number of McKinnell, 669, v. United States 888 F.2d 5-6,1993, April tried and convict- Gomez was (10th Cir.1989) (holding if 676 that even de for a new trial on the basis ed. He moved fendant had been “entitled to relief under light only evidence came to that 3161(a)(2) [sic], rights section he waived his I, 56, days “a few trial.” R.Vol. Docs. before to that relief his failure to move for joined The a 57. trial”); prior dismissal to see also United stipulation stipulation for a new trial. The (7th Alvarez, 801, v. 860 States F.2d 821 specifically stated that “a new trial should be Cir.1988) eases), denied, (citing 490 cert. U.S. granted in to allow the defense suffi- order (1989). 1051, 1966, 109 104 L.Ed.2d 434 S.Ct. to the evidence and docu- cient time review dispute Mr. Gomez does not that he I, regarding wiretap.” R.Vol. mentation Speedy failed to raise his Trial Act claim Doc. 60. Thus, language prior plain to trial. 22-24, The case was retried November the statute itself dictates that he has waived again and Mr. Gomez was convicted. any right may to that he have had dismissal appeal This followed. 3162(a)(2). of the indictment under section McKinnell, See 888 F.2d DISCUSSION however, notwithstanding argues, that his Act, TRIAL comply I. SPEEDY failure to with the we must plain conviction for error. We reverse his Mr. Gomez first claims that he was disagree. statutory right denied his and constitutional trial, Speedy speedy to a violation plain decision to correct a error The Act, Trial 18 U.S.C. and the Sixth discretion of the Court is within the “sound review constitutional viola Amendment. We Appeals, court not exercise and the should compliance tions and the district court’s with ‘seriously that discretion unless the error requirements Speedy Trial Act de fairness, integrity public repu affects the ” Dirden, novo, F.3d United States v. 38 judicial proceedings.’ United tation of (10th Cir.1994); Davis, Olano, 725, -, United v. 1135 113 S.Ct. States v. 507 U.S. (10th Cir.1993), 1770, 1776, (quoting accept 1 F.3d 1017-18 1, 15, findings clearly Young, 470 105 ing the court’s factual unless States v. U.S. United (1985)); Pasquale, L.Ed.2d 1 Fed. States v. 25 S.Ct. 84 erroneous. United Overstreet, Cir.1994). (10th 52(b); v. R.Crim.P. United States 950 appeal. purely Thus, lengthy factual matter is not before us 5. While the factual discussion Mr. question suggests brief that there is a Gomez's while our recitation of the facts of the regarding identity of the individual who met parties’, reflects less colorful than the somewhat Salinas, government’s dispel any and the brief likewise findings. acceptance jury’s implicit our notion, attempt an to such reflects (10th Cir.1994), particular right is “[w]hether cert. de stated — waivable; par -, defendant must nied, whether the 115 S.Ct. U.S. waiver; (1995). 52(b) personally in the grants ticipate an whether Rule L.Ed.2d 859 waiver; procedures required for authority correct “an certain are appellate court choice must be and whether the defendant’s ‘plain’ and that ‘affects sub ‘error’ ” Olano, at -, voluntary, all particularly informed or de rights’ U.S. stantial Olano, Smith, pend right on the at stake.” States v. - (10th denied, at -, Cir.), at 1777. 113 S.Ct. -, “right at stake” this case is statu (1994). However, prerequisite as a tory by Congress to benefit —created 52(b), a court must under Rule error review who awaits trial both the criminal defendant indeed has been find that an “error” first “speedy justice.” public expect and the who committed. Saltzman, U.S. -, Cir.), cert. legal “Deviation from a rule is ‘er (1993). 2940, 124 L.Ed.2d 689 ror’ unless the rule has been waived.” Ola However, just provides remedy as the Act no, at -, at 1777. The mandate, speedy trial so for violation of its “if corollary this statement is that obvious provides that unequivocally too it the failure waiver, been a valid there is no there has prior of a defendant to move for dismissal ‘error’ for us to correct.” United States any right to that constitutes waiver (7th Cir.1994). Lakich, remedy. Congress has not included a re as “an intentional relin Waiver is defined in the Act that the defendant’s quirement quishment or abandonment known knowingly intelligently. waiver be made Zerbst, right.” Johnson Thus, itself, by the clear terms of the statute 1019, 1023, 82 L.Ed. 1461 timely defendant’s failure to assert his timely a And while the mere failure to assert right by filing a motion to dismiss the indict right constitutional does not constitute a prior trial does indeed a ment to constitute 468, right, of that id. at 58 at waiver S.Ct. right.6 waiver of that Wade, 1024-25; see United States v. 218, 1926, 1937-38, case, 237, comply 18 L.Ed.2d In this Mr. Gomez failed to (1967); Arizona, Speedy Trial Act re- Miranda v. 384 U.S. with the terms of the 1149 1602, 1625-26, quiring prior him to move for dismissal to 86 16 L.Ed.2d (1966), has, therefore, statutory may right right 694 of a trial. He waived his to waiver such, remedy. knowingly if it made. As there was no error be valid even is not Robinson, committed, 418, nothing and therefore for us to See United States v. 8 F.3d 52(b).7 (7th Cir.1993). Supreme 421 has review under Rule Court Thus, (1979)). point Cong. holding holding 1st Sess. 28-29 our 6. Our on this is not inconsistent Saltzman, Saltzman, here, together simply with United States v. 984 F.2d 1087 read con (10th defendant, Cir.1993), we where held that majority considering circuits firms what the acting unilaterally, right to a could not waive his Congress carefully the issue have held: has de speedy Id. In trial under Act. at 1091. protec fined the circumstances under which the Saltzman, government’s argument, we which i.e., Speedy may Act tions of Trial waived— rejected, was that the defendant had affirmative- the individual failure to move for dismissal—and ly right speedy indictment. In waived his Gambino, may defendant not add to this. See 59 case, however, finding our of a waiver flows cases). (citing F.3d at 359-60 directly plain language of the statute from itself. argument reviewing support 7. of his that a Moreover, recently the Second Circuit has as court, analysis, applying plain may error re- Act, recognized, enacting Speedy Trial claim, Speedy of a Trial Act view the merits Congress specifically considered the circum notwithstanding the defendant's failure to move protections the Act stances under which the trial, prior for Mr. Gomez cites Unit- dismissal ultimately could be waived and “limited waiver Cir.1994). (7th McKinley, ed v. 23 F.3d 181 States 70-day speedy requirement of the trial nar Gomez, however, Unlike Mr. we do not conclude circumstances, i.e., rowly defined a failure to that the Seventh Circuit's determination that the prior prior move for dismissal entry trial or patently at issue was meritless indicates a claim plea.” guilty or nolo contendere Unit rejection applying Gambino, 353, of its clear case law waiver. (2d ed 59 360 Cir. States F.3d Alvarez, 801, 419, 1995); 860 F.2d 821- Pringle, See United States v. see United States v. 212, (7th Cir.1988). (1st 1984) (citing S.Rep. 22 433 Cir. No. 96th by arrest. Right Speedy to a means federal Arrest state au- 2. Amendment Sixth charges trigger on state Trial thorities does speedy provisions trial of the Federal argues next that he Allen, Constitution. United States v. right speedy to a trial has been denied the (10th Cir.1993). 1354, F.2d by him the Sixth Amendment. guaranteed was not raised below. Unlike This issue In this was arrest trial, statutory right speedy a mere to a 16,1992, charges ed on federal March right does failure to assert the constitutional ultimately brought April was to trial on Thus, we review this not constitute waiver. Thus, there was a twelve and one-half Olano, plain for error. 507 U.S.- claim delay month between his federal arrest and -, 1776-77; 113 S.Ct. at Fed.R.Crim.P. his trial. While we have observed that there 52(b). error, constitute the district To beyond “bright pretrial delay is no line which mistake must have been both obvious court’s id., trigger analysis,” will a Barker we are Meek, and substantial. United States cognizant Supreme also Court’s obser (10th Cir.1993). F.2d States, Doggett vation v. United (1992), Determining whether a defendant’s speedy right Amendment to a “[d]epending Sixth on the nature of the balancing of requires violated a careful been charges, generally the lower courts have by Supreme four factors enunciated postaccusation delay ‘presumptively found Wingo, Barker v. Court prejudicial’ approaches least as it one The fac year,” id. at 652 n. 112 S.Ct. at 2691 n. 1. (2) (1) delay; length are: tors longer delay While a is tolerable more (3) delay; defen reason for the whether the complex conspiracy, cases such as see Bark trial; speedy to a dant asserted his er, 2192, in this 407 U.S. at 92 S.Ct. at delay prejudiced whether the the defen defendant; was one there ease there dant. Id. at see Unit single charged; drug was but a count and the Dirden, 1137-39 ed States v. fairly trafficking prosecution straightfor (10th Cir.1994); Occhipinii, States v. United Thus, delay while we not find ward. do (10th Cir.1993); especially egregious, in this case Trana cf. Tranakos, 1422, 1427 kos, delay), (six-year we Cir.1990). factors, “None of these taken delay, in nevertheless believe that the excess itself, necessary a or sufficient con is ‘either year, triggers of the of one consideration finding deprivation the of the dition to other Barker factors. Rather, they right speedy of trial. are relat is reason for The second Barker factor the together must considered ed factors and be by delay. set forth the the The reasons may such other circumstances as be (1) delay government for the are as follows: Kalady, v. relevant.’” United States 941 continuance, government requested a the (10th Cir.1991) (quoting 1095 object, that it which Mr. Gomez did not so 2193). Barker, at 92 S.Ct. at U.S. (2) trial; prepare time to for the could have length delay of a threshold The is continuance, requested government delay Only presumptively factor. if the is object, in the inter- which Mr. Gomez did not prejudicial inquire need we into the remain (3) counsel; continuity govern- of the est Dirden, ing Barker factors. 38 F.3d at 1137. requested ment a continuance the interest is either a formal indictment informa “[I]t witness, Roy testimony obtaining by imposed or else the actual restraints tion Salinas; continued the district court holding arrest and to answer a criminal sponte another trial ran the case sua because engage particular protections charge that Br. at longer expected. Appellee’s 19- than speedy provision trial of the Sixth 20; Appellant’s Br. at 29. see Marion, States v. Amendment.” United delay weight given varies with to each 307, 321, 455, 464, U.S. S.Ct. its cause. MacDonald, (1971); see United States delay the trial in 1, 6-7, attempt A deliberate 102 S.Ct. “Arrest,” however, be hamper the defense should order to L.Ed.2d 696 delay heavily against government. As to the final reason for the weighed —the negligence such as unavailability A more neutral reason of witness —Mr. Gomez weighed courts should be or overcrowded nothing directed us to in the record which heavily but nevertheless should less reason,” would dictate that this “valid see responsibility since the ultimate considered Barker, at 407 U.S. at 92 S.Ct. must rest with the for such circumstances weigh against should at all. than with the defen- government rather short, while we find the reasons for the reason, Finally, such a valid as dant. delay than twelve and one-half month less witness, justify missing should serve to fully justified, by no them to we means find delay. appropriate weigh heavily against government. 2192; Barker, 407 U.S. at The third Barker factor is the defendant’s Dirden, F.3d at 1138. right speedy of his to a trial. As assertion observed, Supreme As the Court has admits, candidly this factor right speedy to a defendant’s assertion of his weighs against him because he never asserts closely trial “is related to the other factors.” right speedy pre- ed his to a trial. is This Barker, 531, 92 at 2192. In 407 U.S. at cisely type Supreme of case to which the objected to Mr. Gomez never Court referred when it stated that the “fail- government sought continuances which the ure to assert the will make it difficult preparation purposes and for substitution prove for a defendant to that he was denied a Furthermore, of counsel. there is no evi Barker, speedy trial.” government sought dence us that the before weighs heavily 2193. This factor gain the continuances order to a tactical against Mr. Gomez. Marion, advantage. See United States factor, preju- The final Barker the actual Sullivan, (1971); L.Ed.2d 468 Perez defendant, weighs dice suffered also Cir.), 479 heavily against analyze Mr. Gomez. We 93 L.Ed.2d 364 prejudice to the defendant terms three (1986). Thus, delay while the attributable to preventing pretrial in- oppressive interests: preparation and substitution of counsel carceration; minimizing anxiety concern and weighs against government, it sub defendant; limiting possibility stantial. Dirden, impaired. that the defense will be Regarding delay due the district Kalady, 38 F.3d at 941 F.2d at 1095. conflict, scheduling court’s as we stated these, acknowledges Of Dirden, “[ajlthough delay attributable to an the last is at issue in this ease. [judge] weighs heavily overburdened less Mr. Gomez claims that he suffered actual delay part than an intentional on the prejudice at his second trial because Chrisni government attorney, delay ‘nevertheless testify Sanchez was unavailable to due to should be considered since the ultimate re- pregnancy. Ms. Sanchez had testified at the sponsibility for such circumstances must rest testimony first trial and her transcribed government with the rather than with the jury read at the second trial.9 ” Dirden, (quot- defendant.’ 38 F.3d at 1138 Barker, 2192). argument This fails for two reasons. 407 U.S. at 92 S.Ct. at First, Tranakos, Thus, delay weighs “[prejudice as we in slightly against this the stated government.8 occurs when witnesses are un- ‘defense First, delay extraordinary. nothing 8. We note that this was not for two reasons. record, there is in the assertion, The trial date was set for March but beyond Mr. Gomez’s own bald judge the because district had another trial in which establishes the individual who read the time, progress two-day at the the trial was re- testimony employee of Chrisni Sanchez as an began approximately scheduled and three weeks Second, Attorney’s the U.S. Office. Mr. Gomez April later on 1993. points nothing to in the record which would have any way in diluted the trial court’s instruction to brief, implies 9. In his Mr. Gomez the tran- that jury reading transcript the that the individual the script reading suspect is somehow because it was completely parly.” was “a neutral R.Vol. Ill at jury by employee read to the “an of the United 133. Attorney’s unpersuaded States Office.” We are OF WIRETAP II. ADMISSION accurately events the recall able to ” EVIDENCE Tranakos, at 1429 past.’ distant Barker, at (quoting next claims that the dis Mr. Gomez 2193) Ms. original). Sanchez’s (emphasis admitting erred in evidence of the trict court testimony the was introduced pursuant the transcribed recorded to wire conversations prosecution, tap Roy telephone not the de He by the Salinas’s line. second government that the us to claims because failed fense, has directed and sealing requirement comply with the that, but for suggesting nothing in the record 2518(8)(a), phone conversations U.S.C. the a her as delay, would have called the suppressed. have been should second trial. the defense witness 2518(8)(a) provides of Title 18 that Section Moreover, not claim Mr. Gomez does any wire recording of the contents of [t]he any testified would have Sanchez ... Ms. ... communication shall be done recording way protect she did at a will the differently at the second trial than such as editing from or other alterations. Immedi- Indeed, argument essen trial. his the first period of ately upon expiration the benefit tially that he has been denied is thereof, re- the order or extensions such impact of Ms. Sanchez’s emotional that the cordings made available to the shall be jury: have had on the testimony would judge issuing such order and under sealed “Clearly reading transcript does presence a seal his directions.... Appel impact testimony.” of live have the subsection, by provided this or satis- recog fails to Br. at 32. lant’s there- factory explanation for absence however, guaran nize, that the constitutional of, or prerequisite for the use shall be does not right present evidence tee of the any wire ... disclosure of the contents of impact embody right to make an emotional derived there- communication evidence testimony was jury. Ms. Sanchez’s on the 2517.11 from subsection of section under jury and Mr. Gomez properly before By language, its clear Section prejudice. Mancusi no suffered Cf. 2518(8)(a) requires, prerequisite to the as a Stubbs, 204, 215-16, 92 S.Ct. recording, of two admissibility of a that one (1972). 2314-15, L.Ed.2d 293 recording criteria be satisfied: either conclusion, Supreme seal, has ob- Court placed properly must have been under of whether a provide that the determination a “satisfac government served or the must comply failure to any given tory explanation” the Sixth for its delay case violates sealing requirement. See United hoc with the must be evaluated on an ad Amendment Rios, Ojeda Barker, basis. case, considering length of 2192. In government’s failure to for the The sanction delay, the reasons articulated statute, by plain lan comply with the delay, Mr. Gomez’s fail- government for the itself, suppression of guage of the statute trial, speedy his ure assert there recording and evidence derived delay how the to demonstrate his failure from. defense, although prejudiced his we hold that delay, while one-half month claims In this twelve to create “ample evidence lengthy, does not rise to the level the record reflects certainly require- sealing presumption that the the violation.10 a constitutional 2517(3) Carini, provides § for disclo- the 11. 18 U.S.C. Citing 562 (2d Cir.1977), vigorously argues or wiretap “under oath communications 148 sure of reviewing viola- court should any proceeding that a consider held under the affirmation Speedy in deter- the Trial Act as factor any tion of State or authority United States or of the a constitutional violation mining whether political thereof.” subdivision simply the law of We note that under occurred. circuit, Speedy analysis Act claim Trial this analysis separate Amendment is from of Sixth Dirden, F.3d at See 1136-39. violation. Appellee’s met.” Br. at 25. In ment was this the support, government has comply sealing requirement the attached the failed to with the Turner, 2518(8)(a). of Lieutenant Steven R. However, § affidavit of 18 U.S.C. our in Weber-Morgan the commander of Narcotics quiry does not end Mr. here. Gomez failed Force, which states that the record- Strike to raise this below: he issue did not move placed ings “sealed in a box” and in the were prior suppression for the of the re Ogden City Department Police evidence cordings object transcripts, or nor did he Appellee’s app. room. Br. at 1. We find the admission of them into evidence at trial. government’s disingenuous contention Generally, object the failure to to the admis contrary to law. sibility plain of evidence is a waiver absent Jones, error. United States First, gov the “seal” to which the (10th Cir.1995). Therefore, we must de equivalent ernment affiant refers is a not the termine whether the admission of this evi sealing under court order. The order plain dence constitutes error. Fed.R.Crim.P. authorizing wiretap specifi in this case 52(b); Overstreet, United States v. cally required “[i]mmediately upon that — Cir.1994), denied, cert. Order, expiration of or this extensions there -, U.S. 115 S.Ct. of, recording such shall be made available to issuing the Court this order and shall sealed under the Court’s direction. The cus 52(b) Plain error under review Rule tody recordings of such shall be where the permissive, mandatory. not “The Court of orders, Court and maintained in accordance Appeals plain should correct a forfeited error Appellee’s app. with the law.” Br. 1 at 6. affecting rights substantial if the error ‘seri language This is consistent with the Utah ously fairness, integrity pub affeet[s] or Act, Interception of Communications under ” reputation judicial lic proceedings.’ Ola- wiretap authorized, which the was see Utah no, at -, (quot U.S. 113 S.Ct. at 1779 (1995), § Code Ann. 77-23a-10 as well as the Atkinson, United States v. currently issue, federal statute 18 U.S.C. (1936)). 80 L.Ed. 555 2518(8)(a). § nothing There is in the record noted, previously error, As plain to constitute suggests which recordings were the district court’s error must have been made available to judge the state court or both obvious and substantial. As to the lat recordings that the were ever sealed under ter, we have stated that substantiality “[t]he Simply put, sealing the court’s direction. requirement plain error rule embodies tapes bag several cassette in an evidence requirement prove prej that the defendant police department’s evidence room does udice attributable to the error.” United satisfy sealing not requirements of 18 Williamson, States v. 2518(8)(a) specific U.S.C. or the order is (10th Cir.1995) (internal omitted), quotations sued in ease. this See United — — denied, U.S. -, cert. Quintero, (3d Cir.1994) L.Ed.2d - (1995) (no. 95-5197); see Ola (setting forth mechanism sealing), no, at -, 113 S.Ct. at 1778. The -, district court did not commit error in (1995). Moreover, govern L.Ed.2d 142 “error,” any, case because the if was argument completely ment’s runs counter to prejudicial. neither obvious nor purpose sealing, which is to ensure authorizing The order is- “subsequent placement tape, to its on a judge pursuant sued a state to state law. opportunity the Government has no to tam trial, however, with, alter, At his per federal or edit Gomez did the conversations that Rios, suppress not Ojeda tapes have been move to recorded.” the tran- scripts object nor did 1849. The defense counsel at trial record does government attorney when the reflect that the state court ordered custo introduced dy tapes Thus, to be them. II police maintained R.Vol. at 120-22. the feder- Thus, government ap judge presiding evidence room. al district proceed- over the pears ample had opportunity ings way knowing have to ac below had no that the tapes any cess purpose. government the complied had not with the seal- any way- was in rendered proceeding itself wiretap order issued the requirement of ing comply failure to by government’s unfair the judge or the federal by the state 2518(8)(a). Thus, To the ex statute, sealing requirement. we do U.S.C. with the tapes was errone that admission failure to tent that the district court’s not believe therefore, was neither “obvi ous, the error fairness, tapes the in- suppress the affected at -, Olano, 507 U.S. nor “clear.” ous” reputation of his trial. Ac- tegrity, public or Young, v. United States 113 S.Ct. plain cordingly, hold that there was no we n. 17 n. 105 S.Ct. 470 U.S. not be re- and the conviction should error error, any, if ground. versed on this “plain.” not simply was “EXPERT” III. OF ADMISSION Furthermore, not Mr. Gomez TESTIMONY TRANSLATION tapes that the admission demonstrated rights.” next contends that the “affecting substantial Mr. Gomez an error 52(b). this, as allowing In a case such in erred Dennis Nord Fed.R.Crim.P. district court comply failure to involving government’s the testify “expert” Span in as an witness felt statute, requirements the technical ish/English Mr. Nordfelt was a translation. showing specific make a a defendant must part college working time for the student “affecting substantial satisfy the prejudice to Force dur Weber/Morgan Narcotics Strike 52(b). Williamson, 53 Rule rights” prong of in and he investigation this case the at -, Olano, 1521; see 507 U.S. F.3d at translating conversa assisted in the recorded that he Mr. claims at 1778. tions, Spanish. At portions of which were tapes the prejudice because has suffered trial, Nordfelt as government called Mr. the case.” government’s to the were “critical con through whom the transcribed a witness However, has not he Br. at 36. Appellant’s He admitted into evidence. versations were tampered with government alleged the government as an was neither offered recordings other are tapes or that the by the court as expert nor was he certified has he demonstrated inaccurate. Nor wise Spanish language. expert an para tapes were of such exactly how the testimony Mr. Nordfelt’s Assuming that government. to the importance mount expert, an properly east as that of could short, that because simply asserts object to the at trial Mr. Gomez did tapes, the evi failed to seal and, testimony there expert admission of the and had suppressed, been should have dence fore, properly before this would not is not suppressed, he the issue been the evidence Thus, Lira-Arredondo, Mr. Gomez convicted. v. have been States court. See United Cir.1994). claims, (10th he has suffered “prejudice” which While 533 n. itself. error, is the conviction see United review for we could (10th Markum, States misinterprets the focus Mr. Gomez Cir.1993), so here because decline to do we context of analysis in the prejudice of our lacking in merit. See argument is so analysis centers not Our plain-error review. at -, Olano, at 1778 or the trial —conviction outcome of on the (“Rule 52(b) mandatory.”). permissive, not and in on the fairness acquittal rather —but proceedings themselves. tegrity acceptance of an court’s The district error, Therefore, simply whether we ask disturbed qualifications will be expert’s fairness, in any, “seriously affeet[ed] if discretion, for a clear abuse judicial reputation of the tegrity, public (10th Cir.1994), Davis, Atkinson, proceedings.” U.S. -, 80 L.Ed. (1995), the court’s dis at -, Olano, (1936); see determining competency of an cretion Regardless of whether at 1779. Markum, at 896 expert is broad. govern tape recordings were “critical” Indus., 928 Quinton v. Farmland (citing us has not directed ment’s Cir.1991)). 335, 336 suggesting that the anything in record trial, a de- Nordfelt received Prior any tampered with tapes edited or were from Weber Spanish inaccurate, gree with a minor or that way, they were University. that, Additionally, he they State served never informed should detect a discrepancy tape between the religious in and the tran- 23-month mission South America scripts, tape Appellant’s should control.” developed comprehension where he his of the Br. at 49. Spanish language. clearly The trial court qualifica could have found Nordfelt’s Mr. Gomez raises this issue for the first satisfy appeal.13 tions sufficient liberal standard time on He did not file motion suppress transcripts; limine to regarding expert under Fed.R.Evid. 702 he did not object trial; to their admission he elected qualifications, see Daubert v. Merrell Dow not to voir dire the witnesses offered Pharmaceuticals, Inc., U.S. -, -, government transcripts; to authenticate the 113 S.Ct. 125 L.Ed.2d 469 object he not prosecution’s did to the use of (noting “liberal thrust” of Federal Rules of transcripts jury as visual aids to the as Evidence), testimony and admission of such tape being played; the audio and he did not an would constitute abuse of discretion. request jury directing instruction Brown, 1048, See United States 540 F.2d jury that tapes the audio were to control (10th denied, Cir.1976), 1053-54 cert. the event discrepancy that there were a be- 1100, 1122, U.S. 97 S.Ct. 51 L.Ed.2d 549 transcript. tween them and the The failure (1977); (interpreter see also Fed.R.Evid. 604 object of the defendant to to the admission of subject qualification expert). as witness as plain evidence is a absent waiver error. error, Finding no error review is not Jones, 860, United States v. 44 F.3d Olano, -, warranted. 113 (10th Cir.1995). at 1777. transcripts The admission of to as sist the trier of fact lies within the discretion IV. ADMISSION OF TRANSCRIPTS of Mayes, the trial court. United States v. argues Mr. Gomez next that the dis (10th 457, Cir.1990), 917 F.2d cert. de admitting trict court erred in transcripts of nied, 1125, the recorded argues conversations. He first (1991); L.Ed.2d 1192 United States v. Mitt government that the laid insufficient founda leider, (10th Cir.1987), 835 F.2d cert. tion for the transcripts. admission of the He denied, objects next government’s to the use of the (1988); Devous, L.Ed.2d 490 United States v. identify parties word “Bird” to one (10th Cir.1985); 764 F.2d Gomez) (putatively Mr. transcripts.12 in the Watson, (10th States v. And, finally appears to raise a best evi Cir.), 840, 100 cert. claim, arguing jury dence that the was never light 62 L.Ed.2d 51 of this clear “primary informed evidence was the precedent, circuit argu we find Mr. Gomez’s tape itself not transcripts; they point wholly were ment on this without merit.14 placed issue, 12. previous had in the ruling left hand the court's on the same margin transcripts speak- the name of the objection excuses his failure to renew the at the example, excerpt transcript er. For one is Appellant’s Reply second trial.” Br. at 10-11. as follows: Mejia-Alarcon, Mr. Gomez misstates wherein CALL FROM BIRD TO ROY SALINAS we held that the defendant's motion in limine ROY: Hello. preserve appeal was sufficient to the issue for Hey. BIRD: necessity renewing objection without the ROY: Yeah? Furthermore, that, at trial. it is fundamental my way. BIRD: I’m on ordered, objec- cases where a new trial has been ROY: You are? during proceeding tions made the first do not BIRD: Huh? preserve appeal issues for second. See Appellant’s Br. at 42. Hill, United States v. 675 n. 2 Cir.1995). preserved 13. Mr. Gomez contends that he in fact by objecting the issue to the admission of the transcripts any objection 14.Mr. grounds Gomez’s failure to raise the first trial on the as tape clearly especially troubling given “the this issue is the best evidence all that the Appellant's Reply Citing this." district court Br. at Unit ordered second trial for the Mejia-Alarcon, specific purpose allowing ed States v. 985-88 the defense "time to (10th Cir.), denied, - U.S. -, regard- review the evidence and documentation (1993), I, wiretap." he claims that "the R.Vol. Docs. 62. If Mr. trial, futility objection given of an relating admissibility the second Gomez had concerns

1527 impressed upon Green, today, but I could leave he v. States United also See — denied, having a (11th Cir.1994), importance him the substitute cert. 1173 attorney got ques- we some 733 in the event U.S. -, 131 L.Ed.2d Scarborough, tions, pretty important 43 (1995); got v. some States we’ve United (6th Cir.1994); delay going United questions.... But I’m not to 1024-25 F.3d (7th Crowder, 691, 697 F.3d — jury getting 36 the answers these v. to States -, denied, 115 Cir.1994), cert. U.S. questions, and I find defendant (1995); United 130 L.Ed.2d attorney S.Ct. has waived the through his (7th Durman, v. States in connection an- present here to be -, Cir.1994), cert. questions. swering these (1995).15 The court XIII at 2. The district R.Supp. Vol. court clearly that the district reflects record Assis- questions with then discussed the admitting abuse its discretion did not record, Attorney on the tant United States therefore, and, no er committed transcripts re- following and formulated handwritten error, inquire no we Finding no need ror. sent in to the sponse, which the court then Olano, U.S. -, 113 S.Ct. at further. jury: 1777. Dear Jurors: response your questions This is THE DISTRICT COURT’S V. your numbers: using same OF JURY’S ANSWERING paper in the same brown 1. It was not QUESTIONS bag time of the transaction. at the allegation of error final Mr. Gomez’s bed, you to I must ask 2. As the truck an improperly court the district is that already your decision on the evidence base jury during delib questions from the swered subject you this trial. presented to on his counsel he nor while neither erations permit evi- do not additional The rules jury its delib began After present. were at this time. dence erations, following note to the it sent in # 2 above rule as stated 3. The same judge: do not consider applies here. Please pa- it in a brown brick —was 1. Cocaine testi- would or would not whether the wife @ drug deal. per bag time of evi- your verdict on the fy. base Please on truck bed 2. Information presented at the law trial. dence and Lupe testify for wife 3. Would sorry I don’t understand I but 4. am Layton # 4 question you asking on this what are Judges Instructions “Judges Instructions.” your reference More Juice you if wish further informa- clarify Please Supp.Br. Appellant’s XI at R.Supp. Vol. tion. A. attach. K. David Winder note, judge receiving the Upon district return these clerk P.S. Please Unit- open court. Assistant appeared your deliberations. end attorney present, but neither ed States XI 1-2. R.Supp. Vol. present.16 counsel were nor his guaranteed the defendant “[A] defense that it had advised The court stated crimi any stage of the present at right to be counsel in error we find no ample opportunity to because transcripts, had reject given, claim we which were structions prior to the second trial. them raise Indus., 48 v. Janus appeal. States See United Cir.), (10th de & n. 3 cautionary regarding instruction 15. While -87, - nied, -, L.Ed.2d transcripts in understand as aids use of Coslet, - (1995); preferred, tapes would have been audio 1993). (10th Cir. Robinson, see 1983), requesting such an Cir. the burden attempt- unsuccessfully had court Be 16. The district squarely Gomez. with Mr. rested instruction does The record defense counsel. cautionary ed to locate request he failed to such cause was made to locate an effort reflect if interpose objection to the an or to instruction sponte, give Gomez. sua the instruction failure court's 97, 106, proceeding nal that is critical to its outcome 78 L.Ed. 674 (“No presence if his would contribute to the fair privilege present] may doubt the [to Stincer, procedure.” Kentucky ness consent-”); Tansy, be lost 911 F.2d at “However, indulge every 396-97. we reason (1987).17 right L.Ed.2d 631 This is further presumption against able waiver of funda 43(a) protected by Fed.R.Crim.P. which re rights” mental constitutional pro such as due quires presence of the defendant “at 396; Tansy, cess. 911 F.2d at Illinois v. every stage Rogers of the trial.” See v. Allen, 337, 343, 1057, 1060, 397 U.S. 90 S.Ct. States, 35, 89, 2091, 422 United 95 U.S. S.Ct. (1970); Zerbst, 25 L.Ed.2d 353 Johnson v. 2094-95, (1975); 45 L.Ed.2d 1 304 U.S. 82 Cir.1992), Carter, 1509, (10th v. 973 F.2d 1515 (1938); Wood, Campbell L.Ed. 1461 see v. 18 — denied, U.S. -, rt. ce (9th 662, Cir.), 672 (1993). 1289, 122 L.Ed.2d 681 Whether a -, 2125, 114 U.S. right defendant has a constitutional to be (1994). Tansy In recognized we that even if present particular stage at a of his or her defense right counsel could waive defendant’s is, trial —that stage whether the is critical present to question be we need not decide —a requires and fairness the defendant to be today counsel could not do so with —defense present legal question which we review —is consulting out first defendant about the waiv Oles, de novo. United States v. 994 F.2d obtaining er and defendant’s consent. Tan (10th 1519, Cir.1993); 1525 United States v. sy, 911 F.2d at 396 n. 2. There is no such 517, (10th Cir.1992). Santiago, 977 F.2d 521 showing Thus, in the instant case. we cannot previously We have held that “[a] agree that the defendant right waived his question jury from the must be answered in present. be Because defendant was not in open only court providing after counsel present, fact Rule 43 was violated and consti Carter, an opportunity to be heard.” 973 occurred, tutional error according to the law F.2d at 1515. The interaction between the Carter, of this circuit. See 973 F.2d at 1515. formulating court and counsel in an answer error, however, A finding of does not end question is somewhat jury akin to the inquiry. deprivation our A of the constitu- conference, instruction where the defendant’s right present tional every to be critical personal input generally will be minimal at stage subject of the trial is still to harmless 392, best. Tansy, See Larson v. 911 F.2d analysis. error Rogers, 40, See (10th Cir.1990) (typically, jury instruction 2095; Schor, 95 S.Ct. at United States v. only by conference attended court and coun (2d 26, Cir.1969); Carter, sel); Rogers, 422 U.S. at cf. 95 S.Ct. at cf. F.2d at 1515-16. reviewing Because we are (jury question 2094-95 request tantamount to violation, a constitutional simply not a viola- instructions). jury Nevertheless, for further 43(a), tion of Rule apply we the harmless- we have held that right defendant has error by standard enunciated the Court in present responds jury when the court to a Chapman California, Carter, v. question. 1515; See 973 F.2d at Hernandez, may uphold States v. de We 745 F.2d (10th Cir.1984). the conviction if the error was “harmless district court beyond formulated its answers to reasonable doubt.” Id. at jury’s questions while on open the record in S.Ct. at Widgery, see United States v. court, but neither the defendant himself nor Cir.1985); 778 F.2d 329-30 Krische defense present. counsel were Smith, (2d Cir.1981); v. 662 F.2d 178-79 Utah, see also Tuttle v. 881 n. 3 experienced judge cor (10th Cir.1995); 52(a). Fed.R.Crim.P. cf. rectly recognized may that a defendant waive the constitutional present during to be We are convinced that the court’s error Massachusetts, Snyder trial. See 291 U.S. was question, harmless. As to the first re- "Although [Supreme] empha- Court just hearing 'to the extent that a fair and would ” privilege presence sized guar- Stincer, that this is not be thwarted his absence.’ useless, presence anteed 'when would be (quoting or the Snyder 107 S.Ct. at 2667 shadow,' Massachusetts, process 97, 106-07, 108, benefit but a clearly due re- quires 330, 332-33, present that a (1934)). defendant be allowed to be 78 L.Ed. 674 factually that the court’s answer was inaccu- cocaine were a brown garding whether the transaction, rate, paper bag simply at the time of claims that he should have exchange place between the following see, took input had into the answer. We fail to Attorney Depu- Assistant United however, what Mr. Gomez or his counsel Coleman, involved ty the undercover officer could have added to the court’s answer. of Mr. Gomez: in the arrest Mr. Gomez cites two cases from the First (Mr. Diamond) Officer, Okay. go- I’m Q Circuit, Argentine, United States v. bag and you paper a brown ing to hand (1st Cir.1987), 786-90 and United States all, it you open that. First of how is ask (1st Cir.1983), Hyson, sealed? proposition for the the district court Coleman) (Deputy bag How is the A may response furnish a substantive sealed? jury’s request for factual information. Q Yes. Supp.Br. unper- Appellant’s at 8. We are staples. stapled A It’s with three suaded. you just pull top and Q Are able to Argentine court in had to The district staples open the back? undo those testimony in draw inferences from order to Oh, yeah. A question jury answer a from the which di- If it would Q you do that for us? Would rectly to an related element crime here, Officer help I have some scissors charged. Argentine, 814 F.2d at 786-87. Now, you what have removed Coleman. in Whether the cocaine involved this ease bag, from that officer? in a of was or was not brown sack the time Roy of cocaine that A This is the brick transaction, however, nothing to do in his ear. handed me [Salinas] with the elements of the crime of distribu- Now, yellow any Q tag of kind is there tion, § see 18 U.S.C. U.S.C. on that? 841(a)(1), clearly and the court did not says plaintiffs num- A Yeah. It exhibit any have to draw inferences from the testi- ber mony provide Deputy in an answer. order I Mr. Diamond: Your honor would sub- testimony precise: “he Coleman’s was did 1 at proposed mit this as exhibit number in plastic not hand it to me this sack. This is ready ad- this time. I’m not to move its II at 46. ours.” R.Vol. mission however. Hyson simply stands for the unremarkable right. All The Court: proposition that a district court has discre- (Mr. Diamond) Q You’ve indicated that testimony a witness to the tion to reread you given that that was the brick that were jury. long the law of this Such has been you recog- night by Mr. How do Salinas. circuit as well. United States Brunetti that, nize officer? (10th Cir.1980). Indeed, in Coleman) recognize I it (Deputy A from case, very the trial court well could have this tape. tape indicating I This is the was in testimony Deputy Coleman reread the tape that was—there’s a duct earlier response jury’s question. We do not plas- masking tape, and there’s the there’s that, light in believe of the directness wrap tic that’s underneath that. testimony, reversible er- Deputy Coleman’s me in And this is—he did not hand it to upon turn the court’s decision to ror should plastic got This is ours. I this sack. question directly instead of re- answer the bag. And this is brick as it is inside the thirty-two transcript. of trial reading lines recognize I it. This is how it was how answering in this first The court’s error handed to me.... beyond a reasonable question was harmless added). (emphasis II at 45-46 R.Vol. doubt. general principle it true that as a While is questions which regard to the other With jury guided by the court’s instruc- answered, contends that Mr. Gomez were finder, fact we do tions —is to act as the sole ... were not neces- “although the answers that, in the district not believe this counsel, Gomez, through sarily improper, question prejudiced answering court’s suggested other an- may preferred and any way. not claim have He does A or evidence derived there- Supp.Br. at 8. find- communication Appellant’s swers.” not turn on under subsection of section 2517. error does from of constitutional prefers; it turns what a criminal defendant (emphasis supplied). Id. that a mistake has been on a determination suggest I do not understand the court to fundamentally affects the fair- made which congressionally sealing mandated proceeding. Because Mr. Gomez ness of the requirement either its exis- that, respect questions acknowledges tence, meaning, applicability its textual or its through number 2 no such mistake oc- Indeed, agree case. I with the court curred, analysis proceed need no further. our disingenuous it as when characterizes answering questions The court’s error statutory sealing prosecution’s claim that the beyond was harmless a reasonable doubt. requirements were in fact met. itWhile apparently true that in this case the CONCLUSION statute, if court was not fact aware of the reasons, Mr. foregoing For the Gomez’s applicability plain, its existence and were not AFFIRMED, and his motion to conviction is statutory requirement then no could ever strike is DENIED. being plain. The meet threshold stat- appli- ute was enacted 1968 and has been Appellant’s motion to strike refer- wiretap cable in all cases since that time. supplemental appellee brief of ences the 90-351, § (codifying U.S.C. 2518 Pub.L. Title matters outside the record is GRANTED. 218). III, § June 82 Stat. Appellant’s motion for leave to file a The reply supplemental brief is also GRANTED. it, I opinion As understand the court’s on bottomed the conclusion that the error MeKAY, Judge, dissenting: Circuit must be substantial and the defendant has respectfully I conclude that I must dissent prejudice prove the burden to attributable to agree fully in this ease. I with all of the rule, general the error. While that is the I opinion except court’s its conclusion that the that, persuaded through language am wiretap admission of the evidence was not statute, purpose Congress and of this has plain error. amade deliberate decision to shift this bur prosecution den to the even in where cases statutory language The relevant makes objection the defendant makes no at trial. government clear that the bears the burden Supreme The Court has made clear that proving admissibility wiretap of of evi- rights errors affect 2518(8)(a) some substantial even specifi- dence. Title 18 U.S.C. prejudice when cannot be shown. See Vas cally provides: quez Hillery, wire, any recording The of the contents of 88 L.Ed.2d 598 Those cases are ones oral, or electronic communication under affecting particularly “integrity” of the way this subsection shall be done such proceedings. very purpose The of section protect recording editing as will from 2518(8)(a) reliability “is to ensure the Immediately upon or other alterations. integrity by of evidence obtained means of order, expiration period of the of the electronic surveillance.” thereof, recordings extensions such shall Rios, 257, 263, 110 Ojeda judge issuing be made available to the such (emphasis sup order and sealed under his directions. courts, plied). Congress, not the has man Custody recordings shall be wherev- integrity supplied by dated that this be judge er the orders. sealing process “prerequisite” as a to its admits, majority readily As the sealing admission as evidence. It is obvious that complied mandate was never this Congress rely was not content on the provides: ease. The statute further ability person objecting to the evidence presence provided by of the seal tampering- normally impossible to show an subsection, satisfactory explana- or a task. thereof, tion for the absence shall be a Indeed, prerequisite Supreme Ojeda for the use or disclosure of Court Rios wire, oral, any rejected government the contents of or electronic even the notion that the wiretap evidence could cure its failure seal non-tampering. 495

by putting proof of The Court reached that view

U.S. at 264-65. Congress’s choice—not its own. It

based on could

is hard for me to see how the Court Ojeda Rios that

hold “timely” the failure to seal the

could not cure recording by showing evidence of consistently

non-tampering and hold prove burden to he was

defendant has the it

prejudiced by the total failure to seal at all.

Congress integrity determined that the has tapes specific sealing insured congressional

requirements. I believe this such, presumes prejudice,

choice and as

requirement proof by the defendant that

prejudice congressionally has been exists

preempted. Supreme As the Court

pointed out: suppression

Congress require intended to satisfy any

where there is failure to directly statutory requirements that

those substantially implement congres- intercept limit

sional intention to the use clearly

procedures to those situations call- employment for the of this extraordi-

nary investigative device. Giordano,

Thus, Mr. is entitled to a new trial in government’s

which the evidence is

suppressed. reasons, foregoing respectfully I

For the

dissent. America,

UNITED STATES

Plaintiff-Appellant,

Larry RICHARDS, D. Defendant-

Appellee.

No. 94-4052. Appeals,

United States Court of

Tenth Circuit.

Oct.

Case Details

Case Name: United States v. Lupe Gomez

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Oct 10, 1995

Citation: 67 F.3d 1515

Docket Number: 94-4049

Court Abbreviation: 10th Cir.