RICARDO GARCIA, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-6186

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The order of the court of appeals (Pet. App.) affirming
petitioner's conviction is reported at 888 F.2d 1395 (Table).

                             JURISDICTION

   The judgment of the court of appeals was entered on September 28,
1989.  The petition for a writ of certiorari was filed on November 27,
1989.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether the district court abused its discretion when it
precluded a linguistics expert from testifying as a defense witness
that petitioner spoke only Spanish, not English.

   2. Whether the district court erred in refusing to compel the
government to disclose the identity of a confidential informant.

   3. Whether the district court abused its discretion when it
admitted testimony concerning references to other criminal conduct
made by petitioner during conversation with an undercover agent.

                               STATEMENT

   After a jury trial in the United States District Court for the
Southern District of Florida, petitioner was convicted of conspiracy
to distribute at least 500 grams of cocaine, in violation of 21 U.S.C.
846, and of distribution of at least 500 grams of cocaine, in
violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2.  /1/ Petitioner was
sentenced to concurrent terms of five years' imprisonment and to a
four-year term of supervised release.  The court of appeals affirmed
without opinion.  Pet. App.

   1. On August 11, 1987, DEA undercover agent Peter Sarron -- posing
as "Pete," an Italian from New York -- was introduced to petitioner
and petitioner's son-in-law, Reinaldo Farina, by a confidential
informant.  Petitioner, speaking in English, remarked that he had many
good Italian friends and that Italians were "very good people to do
business with." Tr. 23-28, 33-34.

   Agent Sarron said he understood that petitioner had some "things"
that he, Sarron, was interested in buying.  Petitioner responded
affirmatively, looked at Farina, and said, "We have a very good friend
who has 27 of those things you want." Agent Sarron said he wanted
twenty of those "things," and petitioner replied that he would be able
to get them from a friend who had a shop nearby.  Tr. 33-34.  However,
petitioner rebuffed Agent Sarron's suggestion that they make a deal
for the delivery of twenty kilograms of cocaine.  Instead, petitioner
stated that the initial transaction should involve only five
kilograms, and translated Farina's comment that they did not know
Agent Sarron very well.  Tr. 43.  When Agent Sarron complained about
the quoted price of $17,500 for "each one of these (things),"
petitioner spoke in Spanish to Farina and then told Agent Sarron that
he would have to negotiate the price with "(their) man." Tr. 35.

   Farina decided to telephone his friend, the source of the cocaine.
Meanwhile, Agent Sarron said that he made a lot of money selling
marijuana in Texas and that he imported marijuana from Colombia on his
shrimp boats.  Petitioner replied that he had lived in the Texas and
Louisiana area, and that he had frequently worked as a captain on
boats used to transport marijuana from Colombia to the United States.
Tr. 43-44.  Petitioner asked if he could be one of Agent Sarron's boat
captains and displayed his bare feet to back up his claim that he had
gone barefoot on boats for many days.  Tr. 46-47.  Farina then
returned from making the telephone call;  however, the transaction had
to be postponed when the source of the cocaine failed to arrive at the
meeting place as expected.  Tr. 48-49.  /2/

   The next day, Agent Sarron and the informant returned to the
restaurant where they had met petitioner and Farina.  After talking
briefly with them, Agent Sarron met with Carlos Fernandez, the source
of the cocaine.  Tr. 50-52.  They negotiated over the price for twenty
kilograms;  Fernandez, Agent Sarron, and the confidential informant
then went next door to Fernandez's store.  Co-defendant Sosa
eventually arrived with the cocaine.  But Fernandez, commenting that
there were too many police in the area, then suggested that they go to
his brother's house instead.  Tr. 53-61.

   Sosa removed a brown bag containing 4.996 kilograms of cocaine from
the trunk of his car and took it into Agent Sarron's car.  Sosa, a
woman accompanying him, the confidential informant, and Agent Sarron
followed Fernandez's car to a house a few miles away.  Tr. 60-61, 182.
 There, after testing and approving the cocaine, Agent Sarron gave the
informant the keys to the trunk of his car, purportedly to get the
money for the cocaine.  The informant went outside as arranged to
signal the surveilling agents;  the police immediately arrested the
occupants of the house.  Tr. 76-78, 80.  When he was arrested,
petitioner, pointing at Agent Sarron, said in English, "You should
arrest him.  * * * He is the marijuana smuggler." Tr. 85-86, 156-175.

   2. At trial, petitioner testified in his own defense through an
interpreter.  He acknowledged that he had lived in the United States
for almost eight years, but denied that he couls speak English.  /3/
Tr. 365-366.  He claimed that he had spoken to Agent Sarron through
two interpreters, and that they had discussed fishing, not drugs.  Tr.
363.  He denied introducing Agent Sarron or the confidential informant
to Carlos Fernandez.  Tr. 366.

   Petitioner sought to call a linguistics expert, Professor R. Scott
Baldwin, to support his claim that he could not speak English.  Tr.
291-312.  In a hearing outside the presence of the jury, Baldwin
testified that he had administered a battery of tests to petitioner to
determine his proficiency in the English language.  Tr. 294-295.
Based on the results, Baldwin believed that petitioner's English
proficiency was "extremely primitive" and that petitioner could not
have engaged in the conversations attributed to him by Agent Sarron.
Tr. 298, 307-308.  On cross-examination, however, Baldwin admitted
that he had never done any studies on how to determine whether someone
was faking ignorance of a language, and that he was not aware of any
such studies.  He also admitted that the English proficiency tests he
had given petitioner after his arrest were not designed to measure
deception, and that he had quickly devised his own means of measuring
it by scrambling the components of the tests so as to alter their
expected progression from simple to difficult.  Tr. 302;  see also Tr.
296-297.

   The district court found that Baldwin's testimony would not assist
the jury in determining whether petitioner spoke English because the
tests that Baldwin had administered could not measure the language
skills of a person who feigned a lack of proficiency.  Therefore, the
court disallowed the testimony.  Tr. 310.

   In response to an objection at trial, the district court also
determined that Agent Sarron's testimony about his conversation with
petitioner concerning marijuana smuggling was admissible.  Tr. 44-46.
The district court cautioned the jury that the testimony applied "(i)n
so far as knowledge and intent" on the part of petitioner, not his
co-defendants.  Tr. 44.

                               ARGUMENT

   1. Petitioner renews his contention (Pet. 14-19) that the district
court erred when it precluded a linguistics expert from testifying
that, in his opinion, petitioner could not speak English.  This claim
is without merit.

   It is well settled that a trial judge has broad discretion to
exclude or admit expert testimony, and his ruling will not be reversed
on appeal unless it is manifestly erroneous.  Salem v. United States
Lines Co., 370 U.S. 31, 35 (1962).  As petitioner concedes (Pet. 17),
the courts of appeals have generally upheld the exclusion of expert
testimony in the field of linguistics.  See, e.g., United States v.
Aguon, 851 F.2d 1158, 1171 (9th Cir. 1988) (en banc);  United States
v. DeLuna, 763 F.2d 897, 912 (8th Cir.), cert. denied, 474 U.S. 980
(1985);  United States v. Schmidt, 711 F.2d 595, 598-599 (5th Cir.
1983), cert. denied, 464 U.S. 1041 (1984);  see also United States v.
Hearst, 563 F.2d 1331, 1349-1350 (9th Cir. 1977), cert. denied, 435
U.S. 1000 (1978).  The same conclusion is warranted here.

   Dr. Baldwin tested petitioner's English skills only after
petitioner had been arrested, i.e., only after he had a motive to
feign an inability to speak the language.  Furthermore, as Dr. Baldwin
acknowledged, he had never done any studies on how to detect such
deception;  nor was he aware of any such studies.  The proficiency
tests he gave petitioner did not measure deception, and there is no
indication that his makeshift modification of the tests was sufficient
to transform them into reliable indicators of petitioner's
truthfulness.

   Whether or not petitioner spoke English was essentially a
credibility issue that the jury was fully capable of deciding based on
its own commonsense evaluation of the parties' testimony.  See, e.g.,
United States v. Cipriano, 493 F.2d 26 (5th Cir. 1974).  At best,
Baldwin's testimony would have wasted time and been cumulative, since
petitioner and his daughter both testified that he could not speak
English -- testimony that was underscored by the fact that petitioner
testified through an interpreter.  At worst, Baldwin's testimony might
have confused and misled the jury.  Thus, even if relevant, it was
excludable.  Fed. R. Evid. 403.  Under these circumstances, the
district court acted well within its discretion in disallowing the
testimony.  /4/

   3. Prior to trial, petitioner moved the district court to order the
government to disclose the identity of the confidential informant,
claiming that the informant's testimony was needed in order to
contradict the testimony of Agent Sarron and because the informant had
acted as an interpreter for petitioner.  Tr. 10-11, 13-14.  Based upon
the government's proffer that disclosure would pose a serious danger
to the informant, /5/ and that interviews of the informant revealed no
conflict between his testimony and Agent Sarron's, the district court
denied petitioner's motion.  Tr. 11, 13-14, 190.

   After failing to persuade the court of appeals that the district
court erred, petitioner renews his contention here.  Pet. 19-23.  The
trial court, however, properly weighed the factors set forth in
Roviaro v. United States, 353 U.S. 53 (1957), in determining that
disclosure of the identity of the confidential informant was not
required.  There is no need for further review of that fact-specific
determination.

   In Roviaro, this Court noted that there is "no fixed rule" as to
when disclosure of the identity of a confidential informant is
required.  353 U.S. at 62.  Rather, "the problem is one that calls for
balancing the public interest in protecting the flow of information
against the individual's right to prepare his defense." Ibid.  That
balance requires a trial court to assess "the crime charged, the
possible defenses, the possible significance of the informer's
testimony, and other relevant factors." Ibid;  see also McCray v.
Illinois, 386 U.S. 300, 311 & n.11 (1967) (noting that Roviaro
eschewed "absolute rule" requiring disclosure and established "the
case-by-case approach").

   In Roviaro, disclosure of the identity of the confidential
informant was required because the informant had been "the sole
participant, other than the accused, in the transaction charged" --
the illegal transportation of narcotics.  353 U.S. at 64.  The two had
been "alone and unobserved during the crucial occurrence for which
(the defendant) was indicted." Ibid.  The informant was the
defendant's "one material witness";  he might have been in a position
to know whether the defendant had been entrapped, or to raise doubt as
to the defendant's identity.  Ibid.  Moreover, the informant was the
only witness whose testimony might have shown that the defendant did
not know that the package he was carrying contained narcotics.  Ibid.

   In this case, by contrast, there is no reason to believe that the
informant's testimony would have been essential, or even helpful, to
petitioner's defense.  The record shows that the informant simply
arranged and was present for the meetings between petitioner, his
co-defendants, and Agent Sarron.  The informant did some translating
for Agent Sarron, as did petitioner himself, but there is no evidence
that the informant was involved in the substantive negotiations over
the price, amount, or delivery of the drugs.  To the contrary, the
government proffered, based on its interviews with him, that the
informant's testimony was not inconsistent with Agent Sarron's
testimony and, in fact, tended to incriminate petitioner.  Tr. 11.
/6/

   Petitioner presented his defense -- that he did not speak English
and did not discuss drugs with Agent Sarron -- through his own
testimony and his daughter's.  Consistently with his co-defendant
Farina's testimony that Farina had not negotiated the drug deal and
did not know of any involvement by petitioner (Tr. 352-353, 357),
petitioner testified that he did not introduce Agent Sarron to Carlos
Fernandez or broker the drug deal.  Thus, even assuming the unlikely
possibility that the informant's testimony would have corroborated
petitioner's story, the prospect of eliciting merely cumulative
testimony from an informant does not justify disclosure of his
identity.  /7/ See, e.g., United States v. Sai Keung Wong, 886 F.2d
252, 256 (9th Cir. 1989);  United States v. Toombs, 497 F.2d 88, 93-94
(5th Cir. 1974).  That is especially the case here, where any need for
disclosure was outweighed by the danger to which disclosure would have
exposed the informant whose house, shortly after the arrest of the
defendants, had been cased by a person with an extensive arrest record
including conspiracy to murder an informant.

   In short, given that the safety of the informant had been
threatened and that his testimony was of dubious worth to petitioner,
the trial court did not abuse its discretion in denying the motion to
disclose his identity.

   3. Petitioner lastly argues (Pet. 23-29) that the testimony
concerning his prior importation of marijuana from Colombia and his
desire to captain one of Agent Sarron's smuggling boats was
inadmissible under Fed. R. Evid. 404(b), which bars "other crimes"
evidence when offered to prove criminal propensity.  This fact-bound
contention that the district court abused its discretion in admitting
testimony does not warrant review by this Court.

   The testimony concerned statements that petitioner himself had made
about similar drug-related matters during his drug negotiations with
Agent Sarron.  Statements do not constitute "other crimes" evidence
within the meaning of Rule 404(b), if they concern offenses
inextricably intertwined with the evidence of the charged offense or
if they are necessary to complete the story of a crime at trial.  See,
e.g., United States v. Weeks, 716 F.2d 830, 832 (11th Cir. 1983).  /8/
These statements were clearly of such a kind, and were therefore
admissible.

   Even if Rule 404(b) did apply to the statements, it did not bar
their admission.  See Huddleston v. United States, 108 S.Ct. 1496,
1500 (1988) (if offered for a proper purpose, "other crimes" evidence
"is subject only to general strictures limiting admissibility such as
Rules 402 and 403").  Rule 404(b) specifically states that "other
crimes" evidence is admissible to prove, inter alia, intent and
knowledge.  Cases such as this one, where a defendant concedes
presence but insists that there is an innocent explanation for his
conduct, are classic examples of situations in which "other crimes"
evidence is admissible to show intent and knowledge.  See, e.g.,
United States v. Hitsman, 604 F.2d 443, 448 (5th Cir. 1979) ("Evidence
of prior drug dealings is highly probative of intent to distribute a
controlled substance, as well as involvement in a conspiracy.");
United States v. Dunbar, 614 F.2d 39, 42 (5th Cir.) (evidence of
conversation between defendant and undercover agent about possible
future drug transactions admissible in prosecution for distribution of
controlled substances), cert. denied, 447 U.S. 926 (1980).

   The statements made by petitioner revealed the developing trust
between a drug seller and a potential buyer.  They also contradicted
petitioner's claims that he and Agent Sarron had discussed fishing,
not drugs, and had done so through two interpreters, not in English.
Further, they demonstrated petitioner's familiarity with drug
trafficking.  See, e.g., Hitsman, 604 F.2d at 488;  Dunbar, 614 F.2d
at 42.  Thus, they referred to crimes similar to those charged, they
were relevant (as required by Fed. R. Evid. 402), and they were
offered for a proper purpose.  /9/

   The statements also passed muster under Fed. R. Evid. 403, since
their probative value was not substantially outweighed by the danger
of unfair prejudice.  Petitioner's arguments (Pet. 27-28) on this
score prove too much;  they would bar the admission of any
narcotics-related "other crimes" evidence altogether.  The testimony
here did not concern a heinous crime likely to incite the jury to an
irrational decision.  Nor did it suggest an improper basis, such as
criminal propensity, for the jury's verdict.  In any event, the
district court cautioned the jury that they were to consider the
testimony only insofar as it related to petitioner's knowledge and
intent;  the jury thus knew not to give the statements undue weight.
In this context, the statements were properly admitted.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   VICKI S. MARANI

      Attorney

   FEBRUARY 1990

   /1/ Petitioner was tried with co-defendants Reinaldo Farina, Jairo
Sosa, and Ricardo Fernandez.  Farina and Sosa were found guilty on
both counts;  Fernandez was found not guilty of conspiracy but guilty
of distribution.  Another co-defendant, Carlos Fernandez, pleaded
guilty to both charges.

   Co-defendant Sosa filed a petition for certiorari (No. 89-5822)
raising the same issue as petitioner with respect to disclosure of the
identity of the confidential informant.  That petition was denied on
January 22, 1990.

   /2/ During the above discussion, petitioner and the confidential
informant translated for Farina, who did not speak English, and for
Agent Sarron, who did not speak Spanish.  Petitioner spoke English
well, and frequently translated Farina's Spanish into English for
Agent Sarron.  See e.g., Tr. 41-43, 90, 112, 114, 141-143.  For
example, at one point in the conversation, Farina said, partly in
Spanish and partly in English, "Perico (a Spanish slang word for
cocaine), Colombia.  No Miami." Petitioner explained that Farina meant
that the cocaine was produced in Colombia and not Miami.  Tr. 41.

   /3/ Petitioner's daughter, testifying as a witness for her husband,
Farina, also denied that petitioner could speak English.  Tr. 317.

   /4/ Despite petitioner's contention to the contrary (Pet. 18),
United States v. Villalta, 662 F.2d 1205 (5th Cir. 1981), cert.
denied, 456 U.S. 916 (1982) is not on point.  That decision dealt with
the competency of an informant to testify, not with the admissibility
of testimony by a linguistics expert.  In Villalta, the court of
appeals held that the jury would be able to judge the credibility of a
witness claimed to have acted as a translator for the Spanish-speaking
defendant;  the court noted only that expert testimony on the
witness's ability would also be presented to the jury.

   /5/ According to information received by the government, the
informant's house had already been "cased" by Daniel Garcia, a
relative of some of the defendants.  Daniel Garcia had an extensive
arrest record, including an arrest for conspiracy to murder an
informant.  Tr. 11-12, 201.

   /6/ Petitioner did not request the district court to conduct in
camera proceedings for disclosure of the informant's identity or for
production of the informant himself.  Gov't C.A. Br. 29.  Thus,
petitioner's claim that the district court should have held a hearing
on the matter (Pet. 20, 22-23) must be deemed waived.  In any event,
the district court did fully hear petitioner's claims and the
government's reasons for nondisclosure, and exercised its discretion
in light of that information.  Tr. 10-14, 190.

   /7/ Petitioner claims (Pet. 21-22) that the testimony of the
informant was necessary because Agent Sarron inconsistently attributed
statements first to Farina and then to petitioner.  However, Agent
Sarron explained at trial that petitioner was translating for Farina
-- so both co-defendants repeated the same statements in different
languages.  See Tr. 112, 143.

   /8/ See also, e.g., United States v. Tripp, 782 F.2d 38, 41 (6th
Cir.) (card games within time frame of a gambling conspiracy were not
"other acts" subject to Rule 404(b)), cert. denied, 475 U.S. 1128
(1986);  United States v. DeLuna, 763 F.2d 897, 915 (8th Cir.) ("The
rule limiting admissibility of uncharged misconduct does not shield an
accused from the reception of evidence that he boasted of his past
experience in crime in order to reassure a prospective vender or
co-worker of his skill and reliability."), cert. denied, 474 U.S. 980
(1985);  United States v. Tunsil, 672 F.2d 879, 880-881 (11th Cir.)
(defendant's statement to agent that he had engaged in a drug deal the
day before his arrest was admissible on res gestae theory, so long as
not unduly prejudicial under Fed. R. Evid. 403), cert. denied, 459
U.S. 850 (1982);  United States v. Aleman, 592 F.2d 881, 885 (5th Cir.
1979) (act is not "extrinsic" if the evidence used to prove it and the
evidence used to prove the offense charged are "inextricably
intertwined").

   /9/ Petitioner does not contest that the jury could have made a
finding from the evidence presented that he had committed the
extrinsic offense.