The facts of this appeal are so unique that they could originate only in the District of Puerto Rico, the sole district within the American federal judiciary where every judge and almost every juror is fluent in English and Spanish.
Defendants-appellants were convicted of conspiracy to possess with intent to distribute marijuana, cocaine, and heroin. On appeal, defendants collectively and separately raise a host of challenges to their convictions and sentences. After reviewing the issues presented, we find that the district court erred in allowing evidence to be presented to the jury in Spanish without an English translation. Because we conclude that this error undermined the right to meaningful appellate review for some of the defendants, we reverse, in part, affirm, in part, and remand the case for action consistent with this opinion.
FACTUAL BACKGROUND
Acting upon a wiretap order, Federal Bureau of Investigation (“FBI”) agents intercepted and recorded numerous telephone conversations among the defendants. The conversations were in Spanish and contained references to tires, car jacks, spurs, tennis shoes, windows, cakes, and ceramic dogs. Believing that these terms were coded references to drugs, the government sought to indict defendants Luis Rivera-Rosario, Carlos Collazo-Ar-royo, Orlando Hernández, Jesús Toro-San-tiago, and Federico Naranjo-Rosa. On December 10, 1997, a federal grand jury indicted the defendants on charges of conspiring to possess with intent to distribute multi-kilogram quantities of drugs, in violation of 21 U.S.C. § 846.
Before this instruction could be implemented, however, defense counsel objected on the ground that the English translation contained so many inaccuracies that the jury should not be allowed to see it.
For the next four days of trial, the jury heard the Spanish tapes and read the Spanish transcript. As the tapes played in open court, the court interpreter did not translate any of the recordings. Neither the Spanish transcript nor the English translation was marked as an exhibit or made part of the record.
In addition to the tapes, the government relied on the testimony of four witnesses to meet its burden of proof. FBI Special Agent Carlos Cases testified about the defendants’ use of coded references to drugs in their taped conversations. Next, cooperating witnesses Daniel Sánchez-Ortiz and Alberto Negrón-Constantino testified that they purchased drugs from Toro-San-tiago in 1995. Finally, FBI Special Agent Harold Clouse stated that notebooks seized from Toro-Santiago’s residence may contain references to drug activity.
The government also introduced several pieces of physical evidence inculpating the defendants, including: (1) drug paraphernalia, such as sifters and an electronic scale, seized from Rivera-Rosario’s bedroom; (2) approximately $8,000 in cash found in Toro-Santiago’s house; and (3) notebooks from Toro-Santiago’s residence with notations that allegedly related to illegal drug activity.
On October 26, 1999, the jury convicted the defendants of conspiracy to possess with intent to distribute illegal narcotics. Seeking to reverse their convictions and sentences, the defendants filed the instant appeal.
DISCUSSION
I.
It is clear, to the point of perfect transparency, that federal court proceedings must be conducted in English., Even if this practice were not intuitively obvious in Puerto Rico, Congress enacted section 42 of the Jones Act, which requires that “[a]ll pleadings and proceedings in the
The parties do not dispute that a violation of the Jones Act occurred. Indeed, it would be impossible to contest the issue: 180 tapes were played in Spanish throughout four days of trial without a single translation. Though we understand, and sympathize with, the district court’s desire not to delay the trial by waiting for the parties to agree on an acceptable translation, the court’s ruling ran afoul of the English language requirement. We thus direct our attention to the more contentious and perplexing issue of how and when to remedy a violation of the English language requirement. This issue does not simply involve the correction of a technical violation; rather, it implicates the more troubling question of how to conduct meaningful appellate review when substantial portions of the record are in a foreign language.
In analyzing this matter, we are left without a guiding star by which to steer our course. The statute does not provide a remedy for violations of its mandate; the legislative history furnishes no guidance on what, remedial framework should be employed; and the issue is unprecedented in caselaw. Sensing our predicament, the parties offer several competing frameworks to address the present violation.
The government argues that we should rely on the analytical framework of the plain error doctrine to dispose of defendants’ claim because defendants failed to raise it in district court.
Though we applaud the conscientious attorney who objects to the presentation of foreign language evidence without translation, we find that it is 'the independent duty of the district court to make sure that “[a]ll pleadings and proceedings ... be conducted in the English language.” 48 U.S.C. § 864.
We impose this independent duty on the district court for three important reasons. First, the Court Reporter Act, 28 U.S.C. § 753(b), places a similar independent duty on the judiciary. The Court Reporter Act requires that a reporter “record verbatim or by mechanical means ... all proceedings in criminal cases held in open court.” Id. All of the circuit courts that have examined the Court Reporter Act have held that it is the responsibility of the court, not the parties, to enforce the statute. See United States v. Nolan,
Like the Court Reporter Act, the English language provision of the Jones Act requires that evidence be memorialized in a particular manner. And just as there is a court reporter to satisfy the requirements of the Court Reporter Act, there are several court personnel assigned to the task of ensuring that the record is maintained in English. Court interpreters are responsible for translating all foreign language testimony into English. See Court Interpreters Act, 28 U.S.C. §§ 1827-1828.
Second, the English language requirement in 48 U.S.C. § 864 appears under a subchapter entitled “The Judiciary.” All of the provisions within this subchapter place administrative burdens on the District of Puerto Rico, ranging from the requirement that courts deposit collected fees to the credit of the United States, 48 U.S.C. § 868, to the demand that all judicial officials be citizens of the United States, 48 U.S.C. § 874. Thus, Congress’ placement of the English language requirement alongside these statutorily-mandated court responsibilities evinces an intent to place an independent duty on courts to ensure that all evidence is presented in English.
Finally, given how obvious Jones Act violations are, there is no need for contemporaneous party objections. In the instant case, for example, the court knew that foreign language evidence was being presented without translation: approximately 180 Spanish tapes were played in open court throughout four days of trial without translation. Moreover, the district court specifically approved of this course of action:
During the Hernández case, the Supreme Court says that the jury must — • all of the jury must listen to the English version [of the evidence], not the Spanish version. That [case] was in New York .... where some jurors did not speak Spanish, and therefore, the Supreme Court has ruled that every juror must listen to the same evidence. Since all the jurors speak Spanish [in this case], then I think we are safe.7
The court was thus on notice of the problem, had a duty to remedy it, and had the personnel necessary to implement the required solution. In fact, the court recognized this duty, only too late, when it called upon court interpreters to provide English translations of a few Spanish words for the jury.
In the alternative, the government argues that the violation of the English language requirement can be remedied by simply supplementing the record on appeal to include a certified English translation of the Spanish tapes. See Fed. R.App. P. 10(e) (authorizing appellate courts to supplement the record to correct omissions or misstatements). Though tantalizingly efficient, this proposal is beset with procedural and substantive difficulties that ultimately make it unappealing.
First, the circumstances surrounding the government’s request to supplement the record do not even fall within the purview of Rule 10(e). In Belber v. Lipson,
Like the appellant in Belber, the government is seeking to expand the record impermissibly. The trial judge never reviewed the English translation that the government now seeks to introduce; the jury neither heard nor read it; and the translation was never marked as an exhibit or filed in district court. Furthermore, defendants challenge the government’s translation, which they claim is one-sided and inaccurate. Under these circumstances, we cannot conclude that the government is simply attempting to “supplement the record on appeal so that it accurately reflects what occurred before the district court.” We therefore reject the government’s efforts to expand the record to include the English translation.
Second, even if we were authorized to expand the record to include an English translation on appeal, the particular facts of this appeal make doing so a perilous task. The parties disagree on how to translate certain phrases, and it is not our prerogative to resolve such disputes. See, e.g., United States v. Rengifo,
Finally, the government’s proposal to remedy violations of the English language
Having determined that the Spanish language evidence cannot be translated on appeal, we are left with only the English language evidence to review. Thus, when a district court violates the English language requirement and allows non-English language evidence to be admitted without translation, both parties are prejudiced by the fact that the appellate court cannot review the non-English language evidence. There may be times when this prejudice is inconsequential — for example, when the untranslated evidence is cumulative or when the untranslated evidence is not implicated by the issues on appeal. However, an appellant’s right to meaningful appellate review will be undermined by a violation of the English language requirement whenever the untranslated evidence has the potential to affect the disposition of an issue on appeal.
Our analysis of the harms that result from a violation of the Jones Act has led us to discover the sought-after remedy: violations of the English language requirement will constitute reversible error whenever the appellant can demonstrate that the untranslated evidence has the potential to affect the disposition of an issue raised on appeal. Absent that potential, there is no prejudice from the violation of the Jones Act that warrants relief.
II.
To apply this newly-minted remedial framework, we engage in a tripartite analysis: (1) we identify the issues raised on appeal that implicate the untranslated evidence; (2) we determine whether there is sufficient evidence in the English language record to affirm the lower court’s adjudication of these issues; and (3) if there is sufficient English language evidence to affirm, we determine whether the untranslated evidence has the potential to affect that conclusion. Applying this framework to the instant case, we find that the right to meaningful appellate review has been undermined for some, but not all, of the defendants.
A. Hernandez’s Sufficiency Claim
Appellant Hernández argues that there is insufficient evidence in the record
Hernández claims that the government faded to meet its burden of proof at trial. Though he admits to associating himself with the conspirators, Hernández insists that he did not intend to commit the underlying drug offense. See, e.g., Gómez-Pabón,
In analyzing Hernández’s claim, “[o]ur review of the evidence must be made in the light most favorable to the government, drawing all legitimate inferences and resolving all credibility determinations in favor of the verdict.” United States v. Angiulo,
At trial, Agent Cases testified that on several occasions Hernández was actively involved in the sale or purchase of illegal narcotics. In particular, Agent Cases testified to at least three incriminating telephone calls that involved Hernández: (1) on May 12, 1997, Hernández and another co-conspirator had a telephone conversation in which Hernández was instructed in code to purchase drugs; (2) three days later, co-defendant Rivera-Rosario told Hernández, in coded language, which sale price to assign to a specific quantity of drugs; and (3) on May 19, 1997, Hernán-dez contacted a co-conspirator and informed him in coded terms that they were in.the process of receiving a load of drugs.
Viewed in the light most favorable to the verdict, the testimony of Agent Cases demonstrates Hernández’s active participation in the conspiracy. Hernández was familiar with the coded references to drugs and prices, helped to assign prices to the narcotics, and purchased drugs for the conspiracy. Taken together, the evidence establishes that the appellant was a trusted confidante who was familiar with the inner workings of the conspiracy and advanced its illegal purpose. His claim to have merely associated with the conspirators is thus undermined by the English language evidence.
On its face, it may seem odd that the limited prosecution evidence we have been able to review could be sufficient to support Hernández’s conviction, but that additional evidence from the prosecution, if we could review it, might undermine our confidence in that conclusion. However, we are routinely required to review the entire record of the proceedings below before deciding whether the evidence is sufficient to support a conviction; we do not simply read the record until we have identified sufficient evidence and then stop reading at that point. Moreover, this would not be the first .time that the government had undermined its own position with the presentation of additional evidence that cast doubt on what would otherwise be a sustainable case on sufficiency of the evidence review.
The appellant makes, three arguments which, viewed in the aggregate, convince
Hernández’s claim of innocence presents a challenging issue to this Court, as it requires that we determine whether his conduct constitutes mere presence or culpable presence. In United States v. Ortiz,
On the one hand, mere association between the principal and those accused of aiding and abetting is not sufficient to establish guilt; nor is mere presence at the scene and knowledge that a crime was to be committed sufficient to establish aiding and abetting. On the other hand, there are circumstances where presence itself implies participation — as where a 250-pound bruiser stands silently by during an extortion attempt, or a companion stands by during a robbery, ready to sound a warning or give other aid if required. In sum, the line that separates mere presence from culpable presence is a thin one, often difficult to plot.
Id. at 711-712 (internal citations and quotations omitted).
The evidence necessary to resolve this issue as it relates to Hernández’s appeal lies buried in the Spanish tapes, which are beyond our scope of review. It is difficult to tell from Agent Cases’ brief snippets of the intercepted conversations how much the appellant knew about the conspiracy and how much he participated in it. For instance, though Agent Cases testified that a co-conspirator told. Hernández to “get some drugs,” Agent Cases failed to explain Hernández’s reaction to this instruction. On the basis of the English language record, then, we do not know whether Her-nández understood what was he was being told, whether he agreed to get the drugs, or whether he refused to do so. Similarly, Agent Cases testified that on May 19, 1997, Hernández told a co-conspirator that they were in the process of receiving a drug load. However, Hernández does not include himself in the statement. In other words, the appellant does not say “we” are in the process of receiving a drug load, but rather “they” are in the process of receiving a drug load. This statement corroborates Hernández’s claim that he knew of the illegal drug scheme but did not actively participate in it.
Furthermore, Hernandez’s claim that he was convicted for merely being associated with the co-defendants is corroborated by the prosecution’s tactics at trial. The prosecution repeatedly tried to link
Given the appellant’s plausible claim of innocence, combined with the sheer volume of the untranslated evidence and its importance to. the government’s case, we find that Hernández has demonstrated that the untranslated evidence has the potential to affect our conclusion that there is sufficient evidence to support his conviction. We therefore vacate his conviction and remand his case for a new trial.
B. Toro-Santiago’s Sufficiency Challenge
Toro-Santiago also challenges the sufficiency of the evidence upon which his conviction rests. Like Hernández, Toro-San-tiago argues that the government failed to establish his active participation in the drug conspiracy.
After reviewing the English language evidence presented against the appellant, we again find that there is sufficient evidence in the English language record to sustain Toro-Santiago’s conviction. First, Agent Cases testified to several telephone conversations that Toro-Santiago had with co-defendant Naranjo-Rosa in which they discussed their drug trafficking activities, using terms such as “hydraulic oil” and “bits” to refer to drugs and “madera” to refer to money. Second, Special Agent Harold Clouse testified that the notebooks seized from Toro-Santiago’s residence contained notations “in the format of those that would be kept by an illegitimate heroin distribution network.” Lastly, cooperating witnesses Daniel Sánchez-Ortiz and Alberto Negrón-Constantino testified that they purchased drugs from Toro-Santiago during the period of the charged conspiracy.
Drawing all legitimate inferences in favor of the prosecution, the evidence establishes that Toro-Santiago was an active member of the drug conspiracy who was familiar with., its coded drug references, kept records of its dealings, and furthered its purpose by selling drugs to two of the government’s witnesses. See Aponte-Suarez,
We therefore find sufficient evidence in the English language record to sustain Toro-Santiago’s conviction; however, in order to actually affirm appellant’s conviction, we must conclude that the untranslated evidence does not have the potential to affect our disposition of this issue. Much to the prosecution’s chagrin, we cannot so conclude.
As noted, the size and importance of the untranslated evidence weigh in favor of concluding that the tapes have the potential to affect our sufficiency determination. There is, however, one additional argument which we find conclusive: in much of Agent Cases’ testimony of Toro-Santiago’s
According to the appellant, the Spanish tapes demonstrate that he was aware of the illegal drug scheme, but that he did not actively participate in it. See Aponte-Suarez,
The force of this argument is compounded by the fact that the Spanish tapes are the only reliable connection between Toro-Santiago and the conspiracy. Neither the notebooks found in Toro-Santiago’s residence nor the cooperating witnesses specifically connected the appellant to the charged conspiracy. With respect to the notebooks, there was no evidence offered regarding who authored them. Moreover, Agent Clouse admitted in two prior FBI reports that “the notations lack sufficient class and/or individual characteristics to make a determination as to the exact purpose and/or function of these records.” With respect to the cooperating witnesses, they testified to purchasing drugs from Toro-Santiago in 1995. Though this testimony demonstrates that Toro-Santiago may have sold drugs to individual consumers, it does not connect him with any of the other conspirators or to the charges in the indictment.
Given the size and importance of the untranslated evidence, compounded by the fact that Toro-Santiago’s claim of innocence is plausible in light of Agent Cases’ ambiguous testimony, we find that the untranslated evidence has the potential to affect our resolution of this issue. We therefore reverse Toro-Santiago’s conviction and remand his case for a new trial.
C. Naranjo-Rosa’s Sentence
Naranjo-Rosa argues that there is insufficient evidence in the record to support the sentence the district court imposed on him. At sentencing, the court attributed 4,000 kilograms of marijuana, or 20 kilograms of cocaine,
In analyzing Naranjo-Rosa’s claim, we review for clear error. See United States v. Lewis,
Having determined that there is sufficient evidence in the English language record to affirm Naranjo-Rosa’s sentence, we examine whether the untranslated evidence has the potential to affect our com elusion. The appellant argues that the Spanish tapes do not support the district court’s determination. For instance, he points out that the Spanish tape upon which the district court relied to attribute “1200 pounds of marijuana” to him does not even mention the number 12 or 1200. In fact, Naranjo-Rosa argues that the only number cited in that tape is “one-thousand two,” which refers not to pounds of marijuana, but to a drug price.
It is undisputed that the district court calculated the drug quantity attributable to Naranjo-Rosa by relying exclusively on the Spanish language tapes:
But let me explain and justify my sentence. In this case, the explicit amounts that can be pinpointed in the record, I will explain them and I will point them out. Government’s Exhibit 2.... Also Government’s Exhibit 4.... Also Exhibit 44.... Also there is Exhibit 55....
Since the district court relied exclusively on the Spanish tapes to calculate appellant’s sentence, there is no way for us to determine whether its recollection of the Spanish tapes is flawed.
More importantly, we are unable to review whether Agent Cases’ testimony regarding drug quantities accurately reflects the content of the Spanish tapes. Because we cannot examine the Spanish tapes to make sure that they are consistent with the English language evidence supporting the district court’s drug quantity determination, we must conclude that the Spanish tapes have the potential to affect our disposition, of this issue.
For the purposes of determining the appropriate sentence on remand, the district court is not limited in the same manner as we are regarding the sufficiency of the evidence to establish guilt, which depends only on the English language evidence heard by the jury. Rather, the district court can, and should, review a certified English translation of the Spanish tapes to ensure that the tápes corroborate Agent Cases’- testimony regarding drug quantities. See, e.g., United States v. Berzon,
D. Riverar-Rosario’s Sentencing Challenge
Similarly, appellant Rivera-Rosario argues that there is insufficient evidence in the record to support the district court’s attribution of 150 kilograms of cocaine to him. Again, though there is sufficient evidence in the English language record to affirm appellant’s sentence, we find that the untranslated evidence has the potential - to affect our conclusion because we are unable to determine whether Agent Cases’ testimony is an accurate reflection of the
III.
Returning to charted waters, we direct our attention to the challenges Collazo-Arroyo, Rivera-Rosario, and Naranjo-Rosa raise to their convictions that do not implicate the untranslated evidence.
A. Collazo-Arroyo’s Voice Recording Challenge
Collazo-Arroyo’s sole argument on appeal is that the district court erred in permitting the jury to hear an exemplar of his voice that was recorded without his permission when he was in prison.
Though Collazo-Arroyo objected to the admission of the exemplar at trial, he failed to file a pretrial motion to suppress the recordings, as required by Federal Rule of Criminal Procedure 12(b)(3). Rule 12(b)(3)’s mandate that all motions to suppress be presented prior to trial is based on the concern that “interrupting] the course of the trial for such auxiliary inquiries impedes the momentum of the main proceeding and breaks the continuity of the jury’s attention.” Nardone v. United States,
Even though the district court ultimately addressed the forfeited issue on the merits, we enforce Rule 12(f) forfeitures “unless the appellant can show ‘cause’ for failing to raise it in a pretrial motion.” United States v. Bashorun,
B. Rivera-Rosario’s Challenges to the District Court’s Rulings
Rivera-Rosario challenges two rulings made by the district court in an effort to expose reversible error. First, he claims that the district court erred in admitting the expert testimony of Agent Cases. Second, he argues that the district court’s decision to admit Agent Cases’ expert testimony unconstitutionally shifted the bur
Rivera-Rosario’s claim that the district court erred in admitting Agent Cases’ testimony rests on the premise that Agent Cases was unqualified to provide expert testimony. According to the appellant, Agent Cases did not have the training or expertise necessary to give accurate interpretations of the coded drug phrases. See Fed.R.Evid. 702 (permitting use of expert testimony only if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence”).
Normally, we would review a district court’s decision to qualify an expert witness for manifest abuse of discretion. See United States v. Alzanki,
Agent Cases’ qualifications as a drug expert in coded conversations are, in fact, sufficient. See generally Richmond Steel Inc. v. Puerto Rican Am. Ins. Co.,
Second, Rivera-Rosario argues that the admission of Agent Cases’ expert testimony unconstitutionally shifted the burden of proof to the defendant. More specifically, appellant argues that since Agent Cases testified both as a fact witness (offering details of his investigation of the defendants) and as an expert witness (providing his interpretation of the coded drug references), the jury was given the false impression that the agent’s opinion regarding the criminal nature of the defendants’ coded language was based on his investigation of the defendants, rather than on generalizations from other experiences. According to Rivera-Rosario, he was forced to correct this false impression, thereby unconstitutionally shifting the burden of proof onto the defense.
Even if we were to accept the logic of the appellant’s argument, the facts do not support his claim. Throughout his direct
C. Narcmjo-Rosa’s Challenge to the Wiretap Evidence
Naranjo-Rosa claims that the district court erred in denying his motion to suppress the intercepted conversations. Specifically, he argues that the government’s application for a wiretap was defective in that it failed to satisfy the necessity requirement, pursuant to 18 U.S.C. § 2518(l)(c).
First, Naranjo-Rosa claims that the government failed to meet the necessity requirement set forth in 18 U.S.C. § 2518(l)(c), which is a precondition to obtaining a wiretap. Section 2518(l)(c) requires that a wiretap application include “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” United States v. Hoffman,
According to Naranjo-Rosa, the government failed to satisfy this requirement because traditional investigative techniques had not been exhausted before the government sought the wiretap. The appellant claims that the government could have uncovered more information about the conspiracy by using confidential informants to set up surveillance and to introduce undercover agents into the conspiracy.
Contrary to the appellant’s assertions, however, the government is not required to show that other investigatory methods have been completely unsuccessful, see United States v. Abou-Saada,
In this case we are satisfied with the government’s showing of necessity. The government’s application for a wiretap describes in detail the surveillance techniques which had been tried, such as physical surveillance, pen registers, closed-circuit television cameras, records checks, and debriefings. The government also described all the reasons why these tactics had been ineffective or limited in use. Moreover, the application lists other available methods which were not viable options, including the use of grand jury subpoenas and search warrants, which would have alerted the conspirators to the ongoing investigation. Not only is the government’s application complete, but it also demonstrates the significant lengths to which the government went before resorting to electronic surveillance. See e.g., United States v. David,
In response, Naranjo-Rosa claims that the evidence that the government obtained from less intrusive investigatory methods provided sufficient information about the target organization, thereby eliminating the need for wiretaps. Though the government’s less intrusive methods had provided some valuable assistance in the investigation, much of the conspiracy’s scope and dealings were still undisclosed. Specifically, the government was still unaware of the identity of many of the conspiracy’s members and the supplier of its drugs. Moreover, at the time of the application, the government had no real knowledge of the organizational structure of the drug conspiracy. Under these circumstances, it was sensible for the district court to allow the government to employ electronic surveillance in order to uncover the complete range, of operations of the target organization. Cf. United States v. Scibelli,
In order to obtain the requested evidentiary hearing, a defendant must make a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and ... is necessary to the finding of probable cause.” Franks v. Delaware,
To support his argument that he was entitled to an evidentiary hearing, Naranjo-Rosa claims that the government made a material omission in its affidavit supporting the wiretap. He claims that the government failed to disclose that they knew of a witness, Angel Ruiz-Adorno, who had a cooperation agreement with the government and had information on some of the investigation’s targets.
Because we find that Ruiz-Adorno had no relevant information regarding the charged conspiracy, we conclude that the government’s omission was not sufficiently material to warrant a Franks hearing.
CONCLUSION
With a disturbing frequency, district courts in Puerto Rico have allowed parties to offer briefs, documents, and testimony in Spanish without translation. Though we recognize that most jurors, and even judges, in Puerto Rico may be more comfortable speaking in Spanish than in English, district courts must be faithfully committed to the English language requirement. If not, the District of Puerto Rico risks disassociating itself from the rest of the federal judiciary. More importantly, appellate courts
cannot properly review district court convictions on the basis of translations, later
For the foregoing reasons, we affirm the convictions of Rivera-Rosario, Naranjo-Rosa, and Collazo-Arroyo; reverse the convictions of Toro-Santiago and Hernán-dez; and remand the cases of Rivera-Rosario and Naranjo-Rosa for re-sentencing, and the cases of Toro-Santiago and Hernández for a new trial.
Affirmed, reversed, and remanded.
Notes
. Defense counsel were provided the English translation of the Spanish transcript for the first time at trial and, as a result, did not have an opportunity to object beforehand.
. In addition, the government introduced a 9-millimeter pistol seized at the time of Rivera-Rosario’s arrest and telephone records demonstrating that Toro-Santiago made several phone calls' to the Dominican Republic and Venezuela.
. Though defendants objected to the inaccuracies in the government's English translation, it is undisputed that they failed to raise their Jones Act claim before the district court.
. Nothing in this opinion, however, should be construed to disturb the well-settled rule that parties are required to translate all foreign language documents into English. See Local Rule 108.1 of the District Court for the District of Puerto Rico. Once the parties translate the documents into English and offer them as evidence, it is the court's duty to ensure that all evidence is presented in English to the jury and for the record.
. The Court Interpreters Act requires courts to appoint interpreters:
if the presiding judicial officer determines on such officer's own motion or on the motion of a party that such party (including a defendant in a criminal case), or a witness who may present testimony in such judicial proceedings ... speaks only or primarily a language other than the English language ... so as to inhibit such party's comprehension of the proceedings or communication with counsel or the presiding judicial officer.
28 U.S.C. § 1827(d)(1).
. Where, as here, the district court was put on notice of the foreign language content of the tapes and refused to allow the jury to review any English language transcript of those tapes, the court had no other option than to appoint a court interpreter to provide contemporaneous English translations for the jury and for the record. Cf. United States v. Arthurs,
. The district court was referring to Hernández v. New York,
. Had the district court adopted this practice with all of the Spanish language evidence, there would be no disputed English translation on appeal.
. Though defense counsel acquiesced to the district court’s decision to discard the English language translation, and may have even encouraged it, this fact is inconsequential. The district court has an independent duty to faithfully uphold the English language requirement. This responsibility is too important to be discharged whenever a party requests that the proceedings be conducted in a language other than English.
Though a party may forfeit an objection to the district court's failure to follow the Court Reporter Act by acquiescing to the court’s procedure, see United States v. Ellzey,
. By contrast, in United States v. Andiarena,
The facts in Andiarena are conspicuously different from those of the instant appeal because the English language transcript that the government is seeking to introduce now is not merely a written version of what the jury heard. Rather, the transcript was created by the prosecution and is allegedly one-sided and inaccurate; it is thus a disputed translation of what the jury heard.
. Only two of the five appellants raised this issue on appeal. Because violations of the English language requirement are so severe in that they have the potential to eviscerate a party's right to meaningful appellate review, and considering that the district court has an independent duty to ensure that court proceedings are conducted in English, we review this claim, sua sponte, as it pertains to all of the appellants. See, e.g., United States v. Atkinson,
Not only is the error here an obvious one, but it also threatens to undermine the "fairness, integrity or public reputation of judicial proceedings” by having this Court affirm appellants’ convictions without being able to review all of the evidence that was presented in the district court.
. Though Ortiz dealt with the crime of aiding and abetting, its general principles apply with equal force to the crime of conspiracy. See United States v. Aponte-Suarez,
. Our ruling should in no way be construed as establishing a per se rule that Jones Act violations constitute reversible error. Rather, we hold that the violation of the English language requirement in this case has the potential to affect our disposition of the appeal, in light of the size of the untranslated evidence, its importance to the prosecution's case, and the appellant’s plausible claim of innocence.
. The conversion of marijuana amounts to cocaine amounts is based on the formula set forth in the Sentencing Guidelines. See U.S.S.G. § 2D1.1 cmt. n.10.
. Because our resolution of this issue calls for re-sentencing, it is unnecessary to address any of the other arguments advanced by Nar-anjo-Rosa regarding his sentence.
. Because our resolution of this issue calls for re-sentencing, it is unnecessary to address any of the other arguments advanced by Rivera-Rosario regarding his sentence.
. Rivera-Rosario joins Collazo-Arroyo in making this argument.
. Rather, the consent form Collazo-Arroyo signed indicated that his calls would be monitored only to "preserve the security and orderly management of the [prison] and to protect the public.”
. The district court did not grant Collazo-Arroyo relief from his Rule 12(f) forfeiture.
.In addition, appellant argues that this Court should adopt a rule that prevents district courts, when weighing a motion for acquittal under Rule 29, from considering the opinion testimony of government agents who interpret allegedly coded conversations. Because Rivera-Rosario did not raise this issue below, we review for plain error. See United States v. DeLeón,
. Naranjo-Rosa was joined by appellants Toro-Santiago and Hernández in raising this issue.
. Appellant claims that the government could have relied on a cooperating witness named Ruiz-Adorno to infiltrate the conspiracy or to help undercover agents do the same.
. When reviewing a wiretap application, "[i]t is not our province to engage in de novo review of an application; instead, we test it in a practical and commonsense manner to determine whether the facts which it sets forth are 'minimally adequate’ to support the findings made by the issuing judge.” United States v. Cole,
. In addition, because Ruiz-Adorno did not have any information that could have helped the government’s investigation of this conspiracy, the defendants cannot rely on him to demonstrate that the government failed to meet the necessity requirement.