United States Court of Appeals

For the First Circuit

Nos. 00-1545

00-1546

00-1575

00-1577

00-1700

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS RIVERA-ROSARIO, A/K/A NEGRI,

CARLOS COLLAZO-ARROYO, A/K/A CARLI,

FEDERICO NARANJO-ROSA, A/K/A PAPO,

JESÚS TORO-SANTIAGO, A/K/A CHU,

ORLANDO HERNÁNDEZ,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Torruella, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge.

Joseph Waldbaum, for appellant Rivera-Rosario.

Raymond Rivera-Esteves, for appellant Collazo-Arroyo.

Linda Backiel, for appellant Naranjo-Rosa.

Randy Olen, with whom Bevilacqua and Cicilline, was on brief

for appellant Toro-Santiago.

Jane Elizabeth Lee, for appellant Hernández.

Mark Irish, Assistant United States Attorney, with whom
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Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,

Assistant United States Attorney, Chief, Criminal Division, and

Thomas F. Klumper, Assistant United States Attorney, were on brief

for appellee.

August 7, 2002
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TORRUELLA, Circuit Judge. 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 CollazoArroyo, Orlando Hernández, Jesús Toro-Santiago, and Federico

Naranjo-Rosa. On December 10, 1997, a federal grand jury indicted

the defendants on charges of conspiring to possess with intent to
1 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.

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distribute multi-kilogram quantities of drugs, in violation of 21

U.S.C. § 846.

At trial, the prosecution's evidence against the

defendants consisted primarily, though not exclusively, of 180

audiotapes, which contain the intercepted conversations. Before

introducing these recordings in evidence, the government provided

the district court and defense counsel with a Spanish transcript of

the tapes and an English translation of the Spanish transcript.

The court then asked the jury whether it preferred to listen to the

tapes while reading the Spanish transcript or the English

translation. The jury responded that it wanted to review the

English translation. At that moment, the prosecution informed the

court that there were not enough English translations for all of

the jurors. In light of this shortage, the court instructed the

government to give each juror a Spanish transcript and to

distribute a couple of copies of the English translation to the

jury as a whole.

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.1 After ascertaining that all of the jurors spoke fluent

Spanish, the court ruled that only the Spanish transcript would be

made available to the jury; the English translation was thus cast

aside.
2 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.

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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 NegrónConstantino testified that they purchased drugs from Toro-Santiago

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.2

On October 26, 1999, the jury convicted the defendants of

conspiracy to possess with intent to distribute illegal narcotics.
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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 United States District Court for

the District of Puerto Rico . . . be conducted in the English

language." 48 U.S.C. § 864 ("Jones Act" or "English language

requirement") (emphasis added); see also United States v. De Jesús

Boria, 518 F.2d 368, 370-71 (1st Cir. 1975) (upholding the

constitutionality of the English language requirement). This

requirement is significant not only because it guarantees that the

District of Puerto Rico remains "a viable part of the federal

judicial system," United States v. Valentine, 288 F. Supp. 957, 964

(D.P.R. 1968), but also because it allows this Court to review

evidence in the same language in which it was presented to the

district court.

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
3 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.

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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.3 Ordinarily, before an appellate court can correct an error

not raised at trial, the defendant must demonstrate that: (1) there

was error; (2) the error was plain; (3) the error affected the

defendant's substantial rights; and (4) the error adversely

impacted the fairness, integrity, or public reputation of the

judicial proceeding. See United States v. Olano, 507 U.S. 725,

732-36 (1993). Since the defendants failed to raise their Jones
4 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.

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Act claim below, the government concludes that the defendants must

now satisfy the rigors of plain error review to obtain a reversal

of their convictions on this issue.

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. § 864.4 As

such, we relieve the parties of their usual duty to

contemporaneously object.

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, 910 F.2d 1553, 1560 (7th Cir. 1990) ("The duty to comply

with § 753(b) lies with the court, not the parties."); United

States v. Gallo, 763 F.2d 1504, 1530 (6th Cir. 1985) (ruling that

"it is the duty of the court, not the attorneys, to meet the Act’s
5 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).

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requirements" (emphasis in original)); United States v. Upshaw, 448

F.2d 1218, 1224 n.6 (5th Cir. 1971) (same); Edwards v. United

States, 374 F.2d 24, 26 n.2 (10th Cir. 1967) (same). Thus, a party

on appeal is not subjected to plain error review for failing to

object below to a violation of the Court Reporter Act. See United

States v. Brand, 80 F.3d 560, 563 (1st Cir. 1996) (holding that in

order to obtain reversal for a violation of the Court Reporter Act,

appellant must show "specific prejudice to his ability to perfect

an appeal," not plain error, even where there was no objection

below).

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. §§ 1827-1828.5
6 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, 73 F.3d 444, 447 (1st Cir.

1996) (noting that when the court is on notice of language

difficulties, the court has a duty to inquire into the matter and,

if necessary, to provide an interpreter).

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They are also required to certify that all documents submitted to

the district court have been properly translated into English. See

Local Rule 108.1 of the District Court for the District of Puerto

Rico. Finally, the clerk of the court is obligated to "refuse to

receive and file the record" of any case removed to district court

that does not contain "an English translation of all papers." Id.

Specific court personnel, then, are responsible for transcribing

court proceedings, in the case of the Court Reporter Act, and for

ensuring an English language record, in the case of the Jones Act.

We therefore refuse to penalize parties, by subjecting them to a

more rigorous standard of appellate review, for failing to request

what court employees are required by statute to provide.6 Cf.

Upshaw, 448 F.2d at 1224 n.6 ("The mandate of the [Court Reporter]

Act may not be shifted to counsel.").

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'
7 The district court was referring to Hernández v. New York, 500

U.S. 352 (1991), in which the Supreme Court held that a prosecutor

did not violate the Equal Protection Clause when he used his

peremptory strikes to remove two Spanish-speaking potential jurors

for fear that they would not defer to the official translation of

the anticipated Spanish language testimony.

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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
8 Had the district court adopted this practice with all of the

Spanish language evidence, there would be no disputed English

translation on appeal.

9 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, 874 F.2d 324,

330 (6th Cir. 1989), we cannot extend such a procedure to cases

involving the English language requirement. The policy interest in

keeping the District of Puerto Rico as an integrated part of the

federal judiciary is too great to allow parties to convert that

court into a Spanish language court at their whim. Furthermore,

were we to adopt such a practice, attorneys who are more

comfortable speaking in Spanish would routinely encourage courts to

violate the English language requirement, knowing that the record

would simply be translated on appeal. Thus, unlike the rare and

inadvertent acquiescence to a court's violation of the Court

Reporter Act, party acquiescence to violations of the English

language requirement would effectively obliterate the requirements

of the Jones Act.

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translations of a few Spanish words for the jury.8 In sum, we do

not think a contemporaneous objection is needed to remind the

district court that it is an English language court.9 We therefore

decline the government's invitation to employ plain error review.

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.
10 By contrast, in United States v. Andiarena, 823 F.2d 673, 676-77

(1st Cir. 1987), we affirmed a district court's decision to expand

the record on appeal to include a transcript of a tape since the

tape had been played at trial. Because the jury heard the tape,

and since the supplemented transcript was merely a written version

of what the jury heard, we found that the district court

"correctly" granted the motion to expand the record. Id.

The facts in Andiarena are conspicuously different from those

of the instant appeal because the English language transcript that

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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, 905 F.2d 549, 551 n.1

(1st Cir. 1990), we refused the appellant's request to expand the

record on appeal to include a deposition transcript. In so ruling,

we noted that "[a] 10(e) motion is designed to only supplement the

record on appeal so that it accurately reflects what occurred

before the district court. It is not a procedure for putting

additional evidence, no matter how relevant, before the court of

appeals that was not before the district court." Id.

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.10
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.

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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,

789 F.2d 975, 983 (1st Cir. 1986) (affirming the jury's authority

to determine which of two competing translations is correct); Cruz,

765 F.2d at 1023 n.4 (stating that interpretation of a foreign

language translation presents a jury question). Translating the

evidence now would also put us at risk of assessing evidence in a

manner different from or inconsistent with the jury's

interpretation. Cf. Bordas & Co. v. Pizarro-Serrano, 314 F.2d 291

(1st Cir. 1963) (noting that "what the interpreter states in the

record . . . must control both the trial and the appeal").

Finally, the government's proposal to remedy violations

of the English language requirement by simply translating the

Spanish tapes on appeal is too dismissive of the Jones Act.

Adopting the government's proposal would convert the English

language requirement into an English language preference; it would

conceivably enable district courts to conduct entire trials in

Spanish, only to have the record translated on appeal. We decline

the invitation to adopt a policy that may lead to such unorthodox

practices.
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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)
11 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, 297 U.S. 157, 160 (1936) ("In exceptional

cases, especially in criminal cases, appellate courts, in the

public interest, may, of their own motion, notice errors to which

no exception has been taken, if the errors are obvious, or if they

otherwise affect the fairness, integrity or public reputation of

judicial proceedings."); see also Molecular Tech. Corp. v.

Valentine, 925 F.2d 910, 920-21 (6th Cir. 1991) ("This court may,

in its discretion, consider clear errors in the proceedings below

in an unusual case sua sponte regardless of the inattentiveness of

the court or the parties.").

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.

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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.11

A. Hernández's Sufficiency Claim

Appellant Hernández argues that there is insufficient

evidence in the record to sustain his conviction. "To prove the

elements of the crime of conspiracy, the government must show the

existence of a conspiracy, the defendant's knowledge of the

conspiracy, and the defendant's voluntary participation in the

conspiracy." United States v. Gómez-Pabón, 911 F.2d 847, 852 (1st

Cir. 1990). More specifically, to establish that a defendant

participated in the conspiracy, the government is required to
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demonstrate two kinds of intent: "intent to agree and intent to

commit the substantive offense." United States v. Rivera-Santiago,

872 F.2d 1073, 1079 (1st Cir. 1989).

Hernández claims that the government failed 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, 911

F.2d at 853 (stating that mere association with conspirators does

not establish an intent to participate in the conspiracy). 

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, 897 F.2d 1169, 1197 (1st Cir. 1990). After examining

the English language evidence in the light most favorable to the

verdict, we find that there is sufficient evidence in the English

language record to support Hernández's conviction.

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, Hernández
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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.
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The appellant makes three arguments which, viewed in the

aggregate, convince this Court that the untranslated evidence has

the potential to affect our conclusion that there is sufficient

evidence to support the appellant's conviction. First, the

quantity of untranslated evidence in this case is overwhelming: 180

tapes, totaling more than 2,000 pages of transcripts, are

exclusively in Spanish. Second, the Spanish tapes are, as the

government concedes, the "gravamen" of its case; they are crucial

to determining the nature and extent of the charged conspiracy.

Third, Hernández argues that the Spanish tapes, at most, reveal

that he knew of the illegal drug scheme and that he socialized with

the conspirators, which is insufficient to support his conviction.

See United States v. Hyson, 721 F.2d 856, 862 (1st Cir. 1983)

(ruling that associating with three conspirators and being aware of

the presence of drugs in their apartment is insufficient to

establish a willingness to participate in and advance the purpose

of the conspiracy).

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, 966 F.2d 707 (1st Cir. 1992), we explained the

inherent complexity of such claims:

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 --
12 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, 905 F.2d 483, 491

(1st Cir. 1990). 

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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).12 

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 Hernández 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
13 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.

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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 Hernández to the conspiracy by virtue of his mere

presence. For example, the prosecution stated, "This call is

between -- not [Hernández], but it's between the pertinent parties.

It's not between [Hernández], but it is [Hernández]." And on

another occasion the prosecutor again revealed his tactic, "And

even though [Hernández] is not -- he's not part of the

incriminating call, he's there and he's present during this

telephone conversation."

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.13
-22-

B. Toro-Santiago's Sufficiency Challenge

Toro-Santiago also challenges the sufficiency of the

evidence upon which his conviction rests. Like Hernández, ToroSantiago 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, 905 F.2d at 490 ("A conspiratorial agreement may

be proven by circumstantial evidence, and the plan may be inferred
-23-

from a development and collation of circumstances." (internal

citations omitted)).

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 conversations, it is

unclear who is actually making the drug references and what, if

anything, is being planned. For example, after listening to a

Spanish language conversation between Toro-Santiago and NaranjoRosa, Agent Cases testified that the references on the tape to

"formicas" and "10 by 10s" were actually coded references to drugs.

The problem, however, is that Agent Cases does not identify ToroSantiago as the person who used the coded phrases, nor does he

explain whether a sale or purchase was being arranged. Though we

can infer based on the English language evidence that Toro-Santiago

actively participated in these drug discussions, that inference

could not be drawn if contradicted by evidence in the tapes.
-24-

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, 905 F.2d at 491

 (ruling that mere knowledge of a drug importation scheme is

insufficient to establish guilt). If the Spanish tapes were to

corroborate Toro-Santiago's claim by demonstrating that it was

Naranjo-Rosa making most of the coded references to drugs, it would

become more difficult to claim that Toro-Santiago actively

participated in the conspiracy.

The force of this argument is compounded by the fact that

the Spanish tapes are the only reliable connection between ToroSantiago and the conspiracy. Neither the notebooks found in ToroSantiago'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
14 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. 

-25-

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 ToroSantiago'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,14 to Naranjo-Rosa, resulting

in a base offense level of 34 under the Sentencing Guidelines.

According to the appellant, this sentence is unsupported by the

Spanish tapes.

In analyzing Naranjo-Rosa's claim, we review for clear

error. See United States v. Lewis, 40 F.3d 1325, 1343 (1st Cir.

1994). After employing this standard of review, we find that there

is sufficient evidence in the English language record to affirm

Naranjo-Rosa's sentence. There are at least eleven conversations

during April and May of 1997 in which Naranjo-Rosa directly

coordinated the sale or purchase of more than 20 kilograms of

cocaine. On the basis of the English language evidence, then, we

must conclude that the district court did not err in its sentencing

determination. 

Having determined that there is sufficient evidence in

the English language record to affirm Naranjo-Rosa's sentence, we
-26-

examine whether the untranslated evidence has the potential to

affect our conclusion. 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.
15 Because our resolution of this issue calls for re-sentencing,

it is unnecessary to address any of the other arguments advanced by

Naranjo-Rosa regarding his sentence.

-27-

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 tapes corroborate Agent Cases' testimony regarding drug

quantities. See, e.g., United States v. Berzon, 941 F.2d 8, 21

(1st Cir. 1991) ("Generally, there is no limitation on the

information which a court may consider in sentencing other than

that the information bear sufficient indicia of reliability to

support its probable accuracy, and evidence not ordinarily

admissible under the rules of evidence at trial may be

considered."). Only then will the Spanish tapes be stripped of

their potential to undermine the district court's sentencing

determination. With these instructions, we remand the case for resentencing.15

D. Rivera-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
16 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.

17 Rivera-Rosario joins Collazo-Arroyo in making this argument.

18 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."

-28-

determine whether Agent Cases' testimony is an accurate reflection

of the content of the Spanish tapes. We therefore remand the case

for re-sentencing.16

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.17 Collazo-Arroyo admits that he signed a consent form

allowing the government to monitor his telephone calls from prison;

however, he argues that he did not consent to having his voice

recorded for the purpose of providing an exemplar at trial.18

Because the government allegedly transcended the scope of his

consent, he concludes that his Fourth Amendment rights have been

violated.
19 The district court did not grant Collazo-Arroyo relief from his

Rule 12(f) forfeiture.

-29-

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

"interrupt[ing] 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,

308 U.S. 338, 342 (1939); see also Jones v. United States, 362 U.S.

257, 264 (1960) (stating that this rule deals "with carrying out an

important social policy and not a narrow, finicky procedural

requirement"). Appellant's failure to comply with the requirements

of Rule 12(b)(3) operates as a forfeiture to challenge the

subsequent admission of the evidence during the trial. See Fed. R.

Crim. P. 12(f).19

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, 225 F.3d 9, 14 (1st

Cir. 2000) (quoting United States v. Núñez, 19 F.3d 719, 722 (1st

Cir. 1994)). Collazo-Arroyo has failed to offer any justification

for his belated request to suppress the voice recordings. We

therefore conclude that the voice exemplar was properly admitted at

trial. Since the untranslated evidence does not have the potential
-30-

to affect our resolution of this issue, we affirm Collazo-Arroyo's

conviction.

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 burden of proof to the defense.

Because we do not find any reversible error in the district court's

rulings, we reject appellant's arguments.

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, 54 F.3d 994, 1005 (1st Cir. 1995).

However, where, as here, the appellant failed to raise this issue

in the district court, we review for plain error. See Fed. R.

Crim. P. 52(b); Olano, 507 U.S. at 732-33. The plain error

standard requires that the appellant demonstrate that: (1) there
-31-

was error; (2) it was plain; (3) it affected the substantial rights

of the accused; and (4) the error affected the "fairness, integrity

or public reputation of judicial proceedings." Olano, 507 U.S. at

732-36. In this case, the appellant cannot even surmount the

lowest hurdle of the four-prong test -- namely, demonstrating that

an error occurred.

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., 954 F.2d 19, 20 (1st Cir.

1992) ("Trial judges have broad discretionary powers in determining

the qualification, and thus, admissibility, of expert witnesses.").

At the time of the trial, Cases had been working as an agent with

the FBI for approximately eight years, specializing in drug

investigations in Texas and Puerto Rico. During this period of

time, he conducted approximately twenty-five investigations that

involved interviewing drug trafficking informants and cooperating

witnesses, securing wiretap orders, and monitoring intercepted

conversations. Many of these intercepted conversations, which were

in English and Spanish, involved heavily coded references to drugs

and narcotic trafficking. See United States v. Hoffman, 832 F.2d

1299, 1310 (1st Cir. 1987) ("In a rough-and-ready field such as

[drug trafficking], experience is likely the best teacher."). In

addition to his professional experience, Agent Cases received FBI

training on how to conduct drug investigations and how to decipher

coded references. Given Agent Cases' experience and training, we
-32-

conclude that the district court did not err in qualifying him as

an expert. 

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 examination, Agent Cases was clear that his interpretation

of the defendants' coded language was based on his previous

experience. For instance, when asked to explain why he believed

that the defendants' use of the word "checks" was a reference to

cash, he responded, "I have extensive experience in money

laundering investigations, and in particular, there was one case

that I worked on where [the word "checks"] was very commonly used

by the drug traffickers to refer to . . . [cash]." Given this

candor, there was no need for the defendant to elicit any evidence
20 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, 187 F.3d 60, 65 (1st

Cir. 1999). Appellant concedes that his argument is based on a

"change in the law." As such, his claim cannot survive plain error

review, as he is unable to demonstrate that his argument rests on

an "obvious or clear [error] under current law." Id.; see also

United States v. Turman, 122 F.3d 1167, 1171 (9th Cir. 1997) ("If

the district judge would have to be clairvoyant to detect the error

(perhaps by foreseeing yet undecided court of appeals or Supreme

Court caselaw) the error is not plain and defendant must object as

a condition for having it considered on appeal.").

21 Naranjo-Rosa was joined by appellants Toro-Santiago and

Hernández in raising this issue.

-33-

regarding the basis of Agent Cases' testimony. Because the burden

of proof did not migrate to the defense, we do not discern any

reversible error and affirm Rivera-Rosario's conviction.20

C. Naranjo-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(1)(c).21 In the

alternative, Naranjo-Rosa claims that the district court erred in

denying him an evidentiary hearing on the government's application

for a wiretap. Finding no reversible error, we reject appellant’s

arguments.

First, Naranjo-Rosa claims that the government failed to

meet the necessity requirement set forth in 18 U.S.C. § 2518(1)(c),
22 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.

-34-

which is a precondition to obtaining a wiretap. Section 2518(1)(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, 832 F.2d 1299, 1306 (1st Cir. 1987) (quoting 18 U.S.C. §

2518(1)(c)). The necessity requirement was "designed to assure

that wiretapping is not resorted to in situations where traditional

investigative techniques would suffice to expose the crime."

United States v. Kahn, 415 U.S. 143, 153 n.12 (1974).

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.22 Based on these neglected

investigatory tactics, Naranjo-Rosa concludes that the government's

reliance on wiretapping was premature.

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,

785 F.2d 1, 11 (1st Cir. 1986), nor is the government forced to run

outlandish risks or to exhaust every conceivable alternative before
23 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,

807 F.2d 262, 268 (1st Cir. 1986) (quoting U.S. v. Bynum, 763 F.2d

474, 476 (1st Cir.1985)) (internal quotation marks and citations

omitted).

-35-

resorting to electronic surveillance, see Hoffman, 832 F.2d at

1306. It is only required to show that it has made "a reasonable

good faith effort to run the gamut of normal investigative

procedures before resorting to means so intrusive as electronic

interception of telephone calls." Id.; see also United States v.

Edwards, 69 F.3d 419, 429 (10th Cir. 1995) ("[L]aw enforcement

officials are not required to exhaust all other conceivable

investigative procedures before resorting to wiretapping."

(citations and internal quotation marks omitted)).23

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
-36-

government went before resorting to electronic surveillance. See

e.g., United States v. Davis, 940 F.2d 722, 728-29 (1st Cir. 1991)

(holding that the necessity requirement was shown even though

government had not attempted to use search warrants, pen registers,

or undercover agents).

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, 549 F.2d 222, 227 (1st Cir. 1977) ("A large-scale

gambling conspiracy may by its structure and modus operandi give

rise to a reasonable inference that other investigative procedures

. . . reasonably appear to be unlikely to succeed if tried."

(internal citations omitted)).

In the alternative, Naranjo-Rosa claims that the district

court erred in denying him an evidentiary hearing on the
-37-

government's application for a wiretap. He claims that he

presented the district court with sufficient evidence of duplicity

in the government's affidavit to secure the wiretap so as to

warrant an evidentiary hearing on the issue.

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, 438 U.S. 154, 154-56 (1978). Material

omissions in a government's application are also sufficient to

constitute the basis for a Franks evidentiary hearing. See United

States v. Parcels of Land, 903 F.2d 36, 46 (1st Cir. 1990). "A

district court's determination, however, that the requisite showing

has not been made will be overturned only if clearly erroneous."

Id.

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
24 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.

-38-

Franks hearing.

24 Ruiz-Adorno had some knowledge of one coconspirator's activities that occurred between 1992 and 1993. This

knowledge, however, was immaterial to the government's

investigation for several reasons: (1) any information that RuizAdorno had fell outside the scope of the charged conspiracy, as the

indictment alleged a conspiracy beginning in 1994; (2) the wiretap

application was submitted in April 1997, by which time RuizAdorno's information was so stale as to be unhelpful; and (3) RuizAdorno had been in custody for two years prior to the date of the

government's wiretap application, which corroborates the little

value that his information had with regard to the ongoing

investigation. Because Ruiz-Adorno's knowledge was immaterial to

the investigation, the district court did not err in denying

Naranjo-Rosa's request for a Franks hearing. See United States v.

Paradis, 802 F.2d 553, 558 (1st Cir. 1986) ("The Franks holding has

been extended to affidavits plagued with material omissions."

(emphasis added)).

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
-39-

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 claimed as evidence, that were neither read nor

heard by the jury.

For the foregoing reasons, we affirm the convictions of

Rivera-Rosario, Naranjo-Rosa, and Collazo-Arroyo; reverse the

convictions of Toro-Santiago and Hernández; 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.