# United States Court o f Ap peals 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. MarkIrish , As sistan t United States Attorney, with whom-2-

Guillermo Gil , United States Attorney, Jorge E. Vega-P ac heco , Assistant United States Attorney, Chief, Criminal D i vision, and Thomas F. Klumper , Assistant UnitedStates Attorney, were on brief for appellee.

August 7, 2002-3- 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 everyjudge 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 presentedto the jury in Spanish without an English t ranslation. Because we conclude that this error undermin ed th e 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

A cting upon a wiretap order, Federal Bureau of Investigation ("FBI") agents intercepted and recorded numerous telephone conversations am ong the defendants. The conversations

were in Spanish and contained refere nces to tires, car jacks, spurs, tennis shoes, windows, cakes, and ceramic dogs. Believing that these te rms were coded references to drugs, the government sought to indict defendants Luis Rivera-Rosario, Carlos Co llaz oArroyo, 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 to1 D efense counsel were provided the English translation of the

Sp anish transcript for the first time at trial and, as a result, did not have an opportunity to object beforehand. -4- distribute multi-kilogram quantities of drugs, in violation of 21 U.S.C. § 846.

At trial, the prosecution's evidence against the defendants con siste d 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 tra nsl ation 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 shor tage, the court instructed the government to give each jur or 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 groundthat the English translation containedso 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

seizedat the time of Rivera-Rosario's arrest and telephone records de mons trating that Toro-Santiago made several phone calls to the Dominican Republic and Venezuela. -5- 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 add ition to the tapes, the government relied on the testimonyof four witnesses to mee t its bur den of proof. FBI Special Agent Carlos Cases testified about the defendants' use of codedreferences 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 andan 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 juryconvicted the defendants of conspiracyto possess with intent to distribute illegal narcotics.-6-

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 enactedsection 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 conductedin the English language." 48 U.S.C. § 864 ("Jones Act" or "English language requirement") (emphasis added); see also UnitedStates v. De Jesús Boria , 518 F.2d 368, 370-71 (1st Cir. 1975 ) (uph olding the constitutionalityof the English language requirem en t). 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 t he 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, andsympathize with, the district court's desire not to delay the trial by waiting for the parties to agree on an acceptable translation, the court's3 Though defe ndants 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. -7- 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 violatio n 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 bywhich to steer our course. The statute does not provide a remedyfor violations of its mandate; the legislative history furnishes no guidance on w hat remedial framework should be employed; and the issue is unprecedented in caselaw. Sensing our predicament, the part ies offer several competing frameworks to address the present violation.

The government argues that we should rely on t he analytical framework of the plain error doctrine to dispose of defendants' claimbecause defendants failedto 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 af fect ed the defendant's substantial ri ghts; and (4) the error adversely impactedthe 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 Jones4 Nothing in this opinion, however, shouldbe construed to disturb

the well-settled rule that parties are required to trans late all foreign language documents into English. See Local Rule 108.1 of the District Court for the District of Puert o Rico. Once the parties translate the documents into English and offer them as evidence, it is the court's duty to e nsure that all evidence is presented in English to the jury and for the record. -8- 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 applaudthe conscientious attorneywho 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 conductedin the English language." 48 U.S.C. § 864. 4 As such, we relieve t he 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 crimi nal 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 UnitedStates

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’s5 The Court Interpreters Act requ ires c ourts to appoint

interpreters: if the presiding j udici al 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 ju dici al proceedings . . . speaks only or pr imarily a language other than the Eng lish 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). -9- requirements" (emphasis in original)); United States v. Upshaw , 448 F.2d1218, 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 revie w for fail ing 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 la nguage provision of the Jones Act requires that evidence be memorialized in a particular manner. And just as there is a court reporter to satisfythe requirements of the Court Reporter Act, there are several court personnel assigned to the task of ensuring that the recordis maintain ed i n English. Court interpreters are

r e sponsible for translating all foreign language testimony into English. See Court Inte rprete rs Act, 28 U.S.C. §§ 1827-1828. 56 W here, as here, the district court was put on notice of th e

foreign language content of the tapes and refused to allowthe 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). -10- 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 anycase removed to district court that does not contain "an English translation of all papers." Id. Specific court personnel, then, are respon sibl e 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 wh at c ourt 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 Sta tes, 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 didnot violate the Equal Protection Clause when he used his peremptorystrikes to remove two Spanish-speaking potential jurors for fear that they would not defer to the official translation of the anticipated Spanish language testimony. -11- placement of the English language requirement alongsid e these statutorily-mandatedcourt 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 violation s are , there is no need for contemporaneous party objections. In the instant case, for ex ample, 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 versi on [o f the evidence], not the Spanish version. That [case] was in New York . . . . where some jurors did not speak Spanish, and therefore, the Suprem e Co urt has ruled that every juror must listen to the sam e ev idence. 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 person nel necessary to implement the required solution. In fact, the court recognized this duty, only too late, when it called upon court interpreters to provide English8 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 mayhave even encouraged it, this fa ct is inconsequential. The district court has an independent duty to faithfully uphold the English language requirement. This responsibility is too important to be dischargedwhenever a party requests that the proceedi ngs be conducted in a language other than English. Though a party may forfeit an obje cti on 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 keep ing the District of Puerto Rico as an integrated part of t h e 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 wouldsimply be transl ated on appeal. Thus, unlike the rare and inadvertent ac quie scence 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. -12- translations of a few Spanish words for the jury. 8 In sum, we do not think a cont emporaneous 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 govern ment argues that the violation of the English language requir ement can be remedied by simplysupplementing the record on appeal to inc lude a certified English tran slation 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, andsince 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 -13- First, the circumstances surrounding the government's request to supplement the record do not even fall within the purviewof Rule 10(e). In Belber v. Lipson , 905 F.2d549, 551 n.1 (1st Cir. 1990), we refused the appellant's request to expand the recordon appeal to include a deposition transcript. In so ruling,

we noted that "[a] 10(e) motion is designed to only supplement the recordon appeal so that it accura tely r eflects what occurred before the district court. It is not a procedure f or puttin g

a dditional evidence, no matter how relevant, before the co urt o f 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 markedas an exhibit or filed in district court. Furthermore, defendants challenge the government's translation, which they claim is one-sidedand inaccurate. Under these circumstances, we cannot

co nclu de 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. 10the government is seeking to introduce now is not merely a written

version of what the jury heard. Rather, the transcript was created bythe prosecution and is allegedly one-sided and inaccurate; it is thus a disputed translation of what the jury heard. -14- 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) . Translati ng t he evidence now would also put us at risk of assessing evidence in a

manner different from or inconsistent wit h 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. A dopting the government's proposal would convert the E nglis h language requirement into an English language preference; it would conceivablyenable district courts to conduct entire tri als in Spanish, only to have the recordtranslated on appeal. We decline the invitation to adopt a policy that may lead to such unorthodox practices.-15- 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 langua ge r equirement 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 la ngu age evidence. There may be times when this prejudice is inconsequential -- for example, when the untranslated evidence is cumulative or when the untr ans lated evidence is not implicatedby 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: vi olations of the English language requirement will consti tut e reversible error whenever the appellant can demonstrate th at t he 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 consid erin g that the district court has an independent duty to ensure that court proceedings are conducted in English, we review t his 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 oth erwise affect the fairness, integrity or public reputation o f 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 obvi ous one, but it also threate ns to undermine the "fair ness , integrity or public reputation of judicial proceedings" by having this Court affirm appellants' convictions without being ab le to review all of the evidence that was presented in the district court. -16- if there is sufficient English language evidence to affirm, we de term ine whether the untranslated evidence has the potential to affect that conclusion. Applying th is 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 particip ation in the conspiracy." United States v. Gómez-Pabón , 911 F.2d 847, 852 (1st Cir. 1990). M ore sp ecifically, to establish that a defendant participatedin the conspiracy, the government is required to-17-

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 ana lyzin g Hernández's claim, "[o]ur review of the evidence must be made in the light most favorable to the governmen t , drawing all legitimate inferences and resolving all credibilitydeterminations 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, Hernánde z an d another co-conspirator had a telephone conversation in which Hernández was instructed in code to purchase drugs; (2) three d ay s 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-18-

contacteda co -co nspirator and informed him in coded terms that they were in the process of receiving a load of drugs.

Viewedin the light most favorable to the verdict, the testimonyof Agent Cases demonstrates Hernández's active participation in the conspiracy. Hernández was familiar with the codedreferences to drugs and prices, helped to assign prices to the narcotics, and purchased drugs for t he conspiracy. Taken together, the evidence establishes that the appellant was a trusted confidante who was familiar with the i nner workings of the conspiracyand 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 evid en ce 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 simplyreadthe record until we have identifiedsufficient 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 th e presentation of additional evidence that cast doubt on what would otherwise be a sustainable case on sufficiency of the evidence review.-19- The appellant makes three arguments which, viewedin the aggregate, convince this Court that the untranslated evidence has the potential to affect our conclusi on that there is sufficient evidence to support the appellant's conviction. First, the quantityof untranslated evidence in this case is overwhelming: 180 tapes, totaling more than 2,000 pages of transcripts, are exclusivelyin 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 th e charged conspiracy. Third, Hernández argues that the Spanish tapes, at mo st, 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 Sta tes v. Hy son , 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 expla ined 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 t he s cene and kn owledge that a crime was to be commi tte d 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 ap ply with equal force to the crime of conspiracy. See United States v. Aponte Suarez , 905 F.2d483, 491 (1st Cir. 1990). -20-

as where a 250-pound bruiser stands silently byduring an extortion attempt, or a companion stands by during a robbery, ready to sound a warning or give other aid if req uire d. In sum, the line that separates mere presence fromculp a ble presence is a thin one, often difficult to plot. Id. at 711-712 (internal citations and quotations omitted). 12

The evidence necessary t o re solve this issue as it relates to Hernán dez '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 conversatio ns h ow much the appellant knew about the conspiracy and how much he pa rticipatedin it. For instance, though Agent Cases testifi e d that a co -co nspirator 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 agreedto get the d rugs, or whether he refused to do so. S imilarly, Agent Cases testified that on May 19, 1997, Her nánde z tolda co-conspirator that theywere 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 corroborates13 Our ruling should in no way be construed as establishing a per

se rule that Jones Act violations constitute r ever sible 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. -21- 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 He rnández to the conspiracy by virtue of his mere presence. For example, the prosec ution 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, combinedwith the sheer volume of the untranslated evidence and its importance to the government's case, we find that Her nán dez has demonstratedthat the untranslated evidence has the potent ial 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 fi nd tha t there is sufficient evidence in the English language record to sustain Toro-Santiago's conviction. First, Ag ent Cases testified to several telephone conversations that Toro-Santiago had with co-defendant Naranjo-Rosa in which t hey discussed their drug trafficking activities, using te rms such as "hydraulic oil" and "bits" to refer to drugs and "madera" to refer to money. Second, Special Agent Harold Clouse testifiedthat 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 infe ren ces in favor of the prosecution, the evidence establishes that To r o-Santiago was an active member of the drug conspiracy who was familiar with its codeddrug 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-

froma development and collation of circumstances." (i nt ernal citations omitted)).

We therefo re fi nd 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 untransl ated e vidence 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 findconclusive: 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, n or d oes he explain whether a sale or purchase was being arranged. Though we

can infer basedon the English language evidence that Toro-Santiago acti v elyparticipated 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 demon strat ing 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 Spanis h tape s are the only reliable connection between ToroSantiago and the conspiracy. Neither the notebooks found in ToroSantiago's residence nor the cooperating witnesses specifically connectedthe appellant to the charged conspiracy. With respect to the notebooks, there was no evidence offeredregarding who authored them. Moreover, Agent Clouse admitted in two prior FBI reports that "the notations lack sufficient class and/or ind ividual characterist ics 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 testimo ny d emonstrates that Toro-Santiago may have sold drugs to individual consumers, it does not connect him with any o f the ot her conspirators or to the charges in the indictment.

Gi ven the size and importance of the untranslat e d evidence, co mpou nded by the fact that Toro-Santiago's claim of14 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 imposedon him. At sentencing, the court att rib uted 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. Ac cording to the appellant, this sentence is unsupported by t h e Spanish tapes.

In ana lyzing 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 recordto affirm Naranjo-Rosa's sentence. There are at least eleven conversations during April and May of 1997 in which Naranjo-Rosa directly coordinatedthe 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.

Havi ng d etermined that there is sufficient evidence in the English language record to affirm Naranjo-Rosa's sentence, we-26-

examine whether the untranslated e vide nce 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 reliedto 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 s entence. In this case, the explicit amounts that can be pinpointed in the record, I will explain them andI will poi nt the m out. Government's Exhibit 2. . . . Also Government's Exhibit 4.

. . . Also Exhibit 44. . . . Also ther e i s 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 suppor ting the district court's drug quantitydetermination, we must conclude that the Spanish tapes have the potential to affect our disposition of this issue.15 Bec ause 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 suffic iency of the evidence to establish guilt, which depends only on the English language evidence heard by the ju ry. Rather, the district court can, and should, rev iew a certified English translation of the Spanish tapes to ensure that the tapes corroborate Agent Cases' testimony regarding dru g quantities. See , e.g. , Unit ed States v. Berzon , 941 F.2d 8, 21 (1st Cir. 1991) ("Generally, the re is no limitation on the information which a court may consider in sentenci ng other than that the information bear sufficient indicia of re liab ility to support its probable accuracy, and evidence not ordinarily admis sible under the rules of evidence at trial may be considered."). Only then will the Spanish tapes be stripped of t heir potential to undermine the district court's sent encin g 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 affirmappellant's sentence, we find that the untranslated evidence has the potential to affect our conclusion because we are unable to16 Because our resolution of this issue calls fo r re-sen tencing,

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 tha t 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 th at th e 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 consen t f orm allowing the government to monitor his telephone calls fromprison; however, he argues tha t he did not consent to having his voice recordedfor the purpose of providing an exemplar at trial. 18 Because the government allegedly transcended the scope of his consent, he concludes that his Fourth Amen dment rights have been violated.19 The district court did not grant Collazo-Arroyo relief fromhis

Rule 12(f) forfeiture. -29-

Though Collazo-Arroyo objected t o th e 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 presentedprior to trial is based on the concern that "interrupt[i ng] the course of the trial for such auxiliary inquiries impedes the momentum of the main proce eding 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 narr ow, finicky procedural requirement"). Appellant's failure to comply with the requirements of Rule 12(b)(3) ope rates 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 f orfeitedissue on the merits, we enforce Rule 12(f) forfe iture s "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 properlyadmitted 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 exp ert testimonyof Agent Cases. Second, he argues that the district court's decision to admit Agent Ca ses' expert testimony unconstitutionallyshi ftedthe burden of proof to the defense. Because we do not findanyreversible 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' tes timony rests on the premise that Agent Cases was unqualified to provide e xpert testimony. According to the appellant, Agent Cases did not have the training or expertise necessaryto g ive accurate interpretations of the coded drug phrases. See Fed. R. Evid. 702 (permitting use of expert testimony onlyif "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence").

Normally, we wouldreview a district court's decision to qualifyan expert witness for manifest abuse of discretion. See UnitedStates 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 er ro r st anda rdrequires that the appellant demonstrate that: (1) there-31-

was error; (2) it was plain; (3) it affectedthe 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.2d19, 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 andSpanish, involved heavilycoded 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 test imon y unconstitutionally shifted the burden of proof to the defendant. More specifically, appellant argues that since Agent Cases testified both as a fact witness (of fer ing details of his investigation of the defendants) and as an expert witness (providing his interpretat ion o f the coded drug referen ces), the jury was given the false impression that the ag ent' s opinion regarding the criminal nature of the defendants' codedlang uage w as 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, therebyunconstitutionally shiftin g th e 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 o f the word "checks" was a reference to cash, he responded, "I have extensive experience in money laundering investigations, and in particul ar, there was one case that I worked on where [the word "checks"] was very commonly used by the dru g traffickers to refer to . . . [cash]." Given th i s candor, there was no needfor the defendant to elicit any evidence20 In addi tion, 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-Ros ario d id 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 argu ment is ba sed 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 appe als 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 i ntercepted 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 namedRuiz-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)

re quires 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 resortedto in situations where traditional i nvestigative techniques would suffice to expose the c rime. " United States v. Kahn , 415 U.S. 143, 153 n.12 (1974).

According to Naranjo-Rosa, the government failed to satisfythis requirement because traditional investigative techniques had not been exhausted before the government sought the wiretap. The appellant claims that t he government could have uncoveredmore information about the consp i racy by using confidential informants to set up surveillance and to introduce undercover agents into the conspiracy. 22 Based on these neglected investigatorytactics, Naranjo-Rosa concludes that the government's reliance on wiretapping was premature.

Contraryto the appellant's assertions, however, the government is not requiredto 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 before23 When reviewi ng a wiretap application, "[i]t is no t ou r

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 t he is suing 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)) (inte rnal quotation marks and citations omitted).

-35- resorting to electronic surveillan ce, see Hoffman , 832 F.2d at 1306. It is only required to show that it has made "a reasonable goodfaith effort to run the gamut of normal inves tigati ve 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 de scri bes in detail the surveillance techniques which had been tried, such as physical surveillance, pen registers, closed-circuit tel evision cameras, records checks, and debriefings. T h e government also described all the reasons why these tactics had been ineffective or limited in use. Moreover, the application lists other available methods whic h we re not viable options, including the use of grand jury subpoenas and search warrants, wh ich would have alerted the conspirators to the ongoing investigation. Not only is the government's application complete, but it also demonstrates the signi ficant 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 providedsufficient information about the target organization, therebyeliminating the needfor 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 hadno real knowledge of the organizational structure of the drug conspiracy. Under these cir cumsta nces, it

was sensible for the district court to allow the government to employelectronic 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 byits s tructure and modus operandi give rise to a reasonable inference that other investigative procedures

. . . reasonably appear to be unli kel y 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-

gover nment's application for a wiretap. He claims that h e presentedthe 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 pr oba ble cause." Franks v. Delaware , 438 U.S. 154, 154-56 (1978). Material omissions in a government's application are also s uffi cient to constitute the basis for a Franks evidentiary hearing. See United States v. Parcels of La nd , 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 tha t 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 , wh o 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 go vern ment's omission was not sufficiently material to warrant a24 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 R uiz-Adorno had some knowledge of one coconspirator's activities that occurred between 1992 and 1993. This knowledge, however, was immaterial to the government'sinvestigation for several reasons: (1) any information that RuizAdorno had fell outside the scope of the charged conspiracy, as the indictment alleged a conspiracybeginning in 1994; (2) the wiretap application wa s s ubmitted 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 informatio n h ad with regard to the ongoing investigation. Because Ruiz-Adorno's knowledge was immaterial to the investigat ion , 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 e xtended to affidavits plagued with material omissions." (emphasis added)). CONCLUSION

With a disturbing frequency, district courts in Puerto Rico have allowedparties 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 Sp ani sh than in English, district courts must be-39-

faithfullycommitted to the English language requirement. If not, th e Dist rict 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 andHernández; and remandthe 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 .