United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-2263 

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United States of America, *

* 

Plaintiff-Appellee, * 

* Appeal from the United States

v. * District Court for the Eastern District

* of Missouri.

Juan Francisco Gonzalez, *

also known as Michael *

Andrew Quinones, *

*

Defendant-Appellant. *

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Submitted: November 18, 2003 

 Filed: April 26, 2004

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Before RILEY, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.

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MELLOY, Circuit Judge.

Juan Francisco Gonzalez appeals his conviction and sentence on charges of

conspiracy to distribute and possess with the intent to distribute more than five

kilograms of cocaine and more than 100 kilograms of marijuana, in violation of 21

U.S.C. § 841(a)(1) and 846, and a forfeiture judgment in the amount of $2,000,000
1

The Honorable E. Richard Webber, United States District Judge for the

Eastern District of Missouri. 

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pursuant to 21 U.S.C. §§ 853. We affirm his conviction and the sentence imposed by

the district court.1

A. Spanish Language Translations

At trial, the government introduced recordings of court-authorized wiretaps

linking Gonzalez to a large-scale drug conspiracy. Several of these wiretaps were

in Spanish. During the government’s case-in-chief, the district court allowed the jury

to read the government’s English transcripts of the Spanish conversations as the

recordings of those conversations were played. On appeal, Gonzalez argues that the

government’s transcripts were inaccurate and that he should have been afforded an

opportunity to present his translations of the recorded conversations

contemporaneously with the government’s translations. He also contends that the

jury instruction regarding the transcripts was inadequate. We review for an abuse of

discretion. See United States v. Beckman, 222 F.3d 512, 520 (8th Cir. 2000) (jury

instructions); United States v. Martinez, 951 F.2d 887, 888 (8th Cir. 1991) (admission

of tape and transcript).

The translations presented by the government were prepared by several

individuals under the supervision of Mr. Chavez. Mr. Chavez, a former police

officer, worked on more than ten Spanish-to-English wiretap translations for the Drug

Enforcement Agency from 1998 to 2003. He testified that he reviewed all of the

translations in this case and found them to be as accurate as possible. 

Gonzalez objected to the government’s translations and sought to exclude

them. The district court overruled Gonzalez’s objection and, instead, appointed an

experienced translator, Mr. Marquez, to assist Gonzalez in challenging the

translations. Mr. Marquez testified that the government’s transcripts were accurate
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overall. However, he challenged the following translations: “tontas” as “tons,”

“mosca” as “money,” and “Las Torres” as “New York City.” Mr. Marquez testified

that those words literally mean “dummies,” “fly,” and “the towers,” respectively. Mr.

Marquez was asked whether his literal interpretation of the word “tontas” made any

sense when used in the context of the following wiretap translation: “He has five

dummies (“tontas”), he is letting me have them for two out here, check it out, huh.”

Similarly, he was asked whether his interpretation of “mosca” made sense in the

following translation: “I mean, what I want is to go and give them some fly

(“mosca”), but I want to bring one, one of them here.” Mr. Marquez maintained that

his translations were accurate.

Initially, we address the appropriate method for introducing transcripts of

wiretapped conversations in criminal trials. Like our sister circuits, we believe that

whenever the parties intend to introduce a transcript at trial, they should first try “‘to

produce an ‘official’ or ‘stipulated’ transcript, one which satisfies all sides.’” United

States v. Cruz, 765 F.2d 1020, 1023 (11th Cir. 1985) (quoting United States v.

Wilson, 578 F.2d 67, 69-70 (5th Cir. 1978)). If they are unable to do so, “‘then each

side should produce its own version of a transcript or its own version of the disputed

portions. In addition, each side may put on evidence supporting the accuracy of its

version or challenging the accuracy of the other side’s version.’” Id. (quoting Wilson,

578 F.2d at 69-70). 

Gonzalez argues that the district court committed reversible error by making

him wait until his case-in-chief to present his expert testimony and translation of the

wire interceptions. We disagree. So long as Gonzalez was given the opportunity to

challenge the government’s translations, the timing of that challenge is left to the

discretion of the district court.

 

We next consider whether the district court erred by allowing the government

to introduce transcripts containing the translator’s undisclosed opinions regarding
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foreign drug code. More specifically, we consider whether it was appropriate to

introduce a transcript suggesting that the Spanish words “mosca” and “tontas” mean

“money” and “tons,” when in fact, they literally mean “fly” and “dummies,”

respectively. 

Generally, transcripts of translated conversations need not be verbatim. See

United States v. Garcia, 20 F.3d 670, 673 (6th Cir. 1994); United States v. Zambrana,

864 F.2d 494, 498 (7th Cir. 1988). In the case of slang terms or idioms which are

widely used and understood by the native speakers of the foreign language,

translators are allowed to provide nonliteral translations so that the foreign term or

phrase makes sense in English. Zambrana, 864 F.2d at 498. However, in the case at

bar we are not dealing with the translation of common slang terms or idioms. The

government’s theory at trial was not that “mosca” (“fly”) and “tontas” (“dummies”)

are generally used by Spanish speakers to mean “money” and “tons.” Rather, the

government’s theory was that Gonzalez and his cohorts used those meanings to

facilitate communication in their covert drug operations. The problem is that the

government’s transcript suggested that these words literally mean something they do

not.

Although it is unnecessary for a translator to take the intermediate step of

providing a literal translation of common slang terms or idioms, we believe more

precision is required when dealing with alleged drug code in criminal trials. The

potential for prejudice is too great in the latter situation. See United States v. Rena,

981 F.2d 765, 769 (5th Cir. 1993) (holding that the district court abused its discretion

in allowing the government to admit transcripts containing the transcribers’

interpretations of drug code). Thus, in the case of foreign drug code, the party

wishing to introduce the translation should ask the translator to identify the English

word that most closely captures the ordinary meaning of the foreign word. Then, the
2

Unlike commonly used slang terms and idioms, drug code is presumably

known and understood by only a small segment of the population. Thus, it is not

appropriate to presume, without laying a foundation, that a translator is qualified to

give opinions relating to alleged drug code.

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translator, if qualified as a drug code expert,2

 or another witness with the requisite

knowledge, should be asked about his opinion regarding the contextual meaning of

the word. For example, if the witness’s experience leads him to believe that the

declarant used the word “mosca,” which literally means “fly,” as drug code for

“money,” then he can so testify. Like all expert testimony, this opinion will be

subject to attack on cross-examination and by the introduction of opposing opinions

from other qualified experts. Adherence to this procedure will allow the jury to

properly weigh the translated evidence.

The district court did not follow the above-mentioned procedure in the case at

bar. However, Gonzalez brought the translation discrepancies to the jury’s attention

through cross-examination of the government’s expert and the testimony of his courtappointed translator. Gonzalez’s attorney also argued this point in closing argument.

Because the jury ultimately received all of the information it needed to weigh the

strength of the wiretap transcripts, we find that the district court’s error was harmless.

Gonzalez also challenges the district court’s jury instruction regarding the

transcripts. The district court instructed the jury as follows:

As you have heard, there is a typewritten transcript of the tape

recording you are about to hear. That transcript will be presented to you

[] in plasma screen format. That transcript undertakes to identify the

speakers engaged in the conversation. You are permitted to view the

transcript for the limited purpose of helping you follow the conversation

as you listen to the tape recording and also to help you keep track of the

speakers. The transcript, however, is not evidence. The tape recording

is the primary evidence of its contents. 
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You are specifically instructed that whether the transcript

correctly or incorrectly reflects [the] conversation or the identity of the

speakers is entirely for you to decide based upon what you have heard

here about the preparation of the transcript in relation to what you hear

on the recording. If you decide that the transcript is in any respect

incorrect or unreliable, you should disregard it to that extent. 

Differences in meaning between what you hear on the recording

or read in the transcript may be caused by such things as the inflection

in a speaker’s voice. You should therefore rely on what you hear rather

than what you read when there is a difference.

The district court’s instruction parallels the Eighth Circuit Manual of Model Criminal

Jury Instructions, § 2.06 (2003), the only model instruction in this circuit pertaining

to transcripts of tape-recorded conversations. This instruction is premised on an

assumption that the jury can understand the language being spoken on the recording.

Thus, while adequate for transcripts of English conversations, the instruction is not

useful for transcripts of conversations originally spoken in a foreign language. 

An example of an instruction that solves this problem is the Seventh Circuit’s

model instruction § 3.18, which provides:

Among the exhibits admitted during the trial were recordings that

contained conversations in the _______ language. You were also

provided with English transcripts of those conversations. The transcripts

were provided to you [by the government] so that you could consider the

content of the conversations on the recordings.

Whether a transcript is an accurate translation, in whole or in part,

is for you to decide. In considering whether a transcript accurately

describes the meaning of a conversation, you should consider the

testimony presented to you regarding how, and by whom, the transcript

was made. You may consider the knowledge, training, and experience

of the translator, as well as the nature of the conversation and the
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reasonableness of the translation in light of all the evidence in the case.

You should not rely in any way on any knowledge you may have of the

language spoken on the recording; your consideration of the transcripts

should be based on the evidence introduced in the trial. 

Seventh Circuit Federal Criminal Jury Instructions § 3.18, Foreign Language

Recordings/Transcripts in English (1999). This instruction is a coherent, accurate

statement of the law. We therefore encourage district courts to use an instruction

similar to it when introducing an English transcript of dialogue that originally was

spoken in another language. 

The crux of the appropriate instruction set forth above is to inform the jury that

it must determine the validity of the transcript presented. We believe the jury was

aware of this duty in the case at bar. Gonzalez’s attorney cross-examined the

government’s translation expert, called his own translator to rebut the government’s

transcripts, and challenged the accuracy of the government’s transcripts in

summation. Thus, although the district court’s instruction was not well suited for the

facts of this case, Gonzalez did not suffer prejudice. 

B. Other Issues

We now turn to Gonzalez’s remaining arguments. Gonzalez claims that a

search of the residence at 4925 Shaw Avenue, St. Louis violated his Fourth

Amendment rights, because the affidavit in support of the search warrant contained

misrepresentations in violation of Franks v. Delaware, 438 U.S. 154 (1978). “To

prevail on a Franks claim the defendant[] must show: (1) that a false statement

knowingly and intentionally, or with reckless disregard for the truth, was included in

the affidavit; and (2) that the affidavit’s remaining content is insufficient to establish

probable cause.” United States v. Reinholz, 245 F.3d 765, 774 (8th Cir. 2001). 
3

As noted above, the government translated “tontas” as “tons,” “mosca” as

“money,” and “Las Torres” as “New York City,” when those words literally mean

“dummies,” “fly,” and “the towers,” respectively.

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At trial, co-defendants Jason Webb, Shirley DeClue, Daniel Power, and Mark

Riebeling all identified Gonzalez as the leader of the drug organization.

Nevertheless, Gonzalez now contends that the search warrant affidavit erroneously

characterized him as the head of a narcotics organization. We find that Gonzalez’s

bald assertion, which was rebutted by trial testimony, is not enough to satisfy the first

element of the Franks test. 

Gonzalez also argues that the search warrant affidavit contained erroneous

translations of wiretapped conversations. Gonzalez’s challenge to the translations

used in the affidavit is very similar to the challenge he raised regarding the transcripts

presented at trial. He claims that the nonliteral translations included in the search

warrant affidavit misled the issuing judge.3

 We need not determine today whether the

nonliteral translations contained in the search warrant affidavit constituted “false

statements” under Franks, because even if the affidavit was perfected as Gonzalez

suggests, there would have been probable cause to search the residence. First, when

read in context, the issuing judge would have had a reasonable basis for finding that

the intercepted conversations were in drug code, in part because the literal

translations of the conversations did not make sense. Second, the wiretapped

conversations were corroborated by surveillance. Third, in addition to the wiretapped

conversations and surveillance, the search warrant affidavit noted that an individual

connected with Gonzalez’s drug organization had informed law enforcement agents

that narcotics were hidden in the residence. Combined, these facts created “a fair

probability that contraband or evidence of a crime” would be found therein. Illinois

v. Gates, 462 U.S. 213, 238 (1983). Consequently, Gonzalez’s Franks claim fails.
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Gonzalez also argues that the evidence presented at trial was insufficient to

support his convictions. We will uphold the verdict if “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In making this

determination, we examine the evidence in the light most favorable to the verdict,

giving it the benefit of all reasonable inferences. United States v. Cruz, 285 F.3d 692,

697 (8th Cir. 2002).

At trial, co-defendants testified that they had an agreement with Gonzalez to

distribute and possess with the intent to distribute cocaine and marijuana. This

evidence sufficiently established that Gonzalez was involved in a drug trafficking

conspiracy. See United States v. Jimenez-Perez, 238 F.3d 970, 973 (8th Cir. 2001)

(“To convict an individual of conspiracy, the government must prove ‘that there was

a conspiracy with an illegal purpose, that the defendant was aware of that conspiracy,

and that he or she knowingly became a part of it.’”) (quoting United States v.

Beckman, 222 F.3d 512, 522 (8th Cir. 2000)). Gonzalez claims that the codefendants’ testimony was insufficient due to the co-defendants’ history of substance

abuse and their desire to receive reduced sentences. However, the record reveals that

the co-defendants’ testimony was corroborated by officer surveillance and seized

evidence. In any event, Gonzalez’s challenge is unavailing, as issues of witness

credibility are for a jury to decide. See United States v. Santos-Garcia, 313 F.3d

1073, 1081 (8th Cir. 2002).

Gonzalez also appeals the district court’s imposition of a two-level

enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). At the

sentencing hearing, co-defendant DeClue testified that she saw Gonzalez in

possession of a gun on approximately four occasions, and that Gonzalez used the gun

for protection and to control his drug clientele. According to DeClue, Gonzalez also

asked her to deliver a gun to two other members of the conspiracy. Based upon this
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evidence, we cannot say that the imposition of a firearm enhancement pursuant to

U.S.S.G. § 2D1.1(b)(1) was clearly erroneous. United States v. Williams, 10 F.3d

590, 595 (8th Cir. 1993). 

Finally, Gonzalez argues that the district court erred in calculating the drug

quantity for which he is responsible. Drug quantities must be proven by a

preponderance of the evidence, and we will not reverse absent clear error. United

States v. Jimenez-Villasenor, 270 F.3d 554, 561 (8th Cir. 2001). 

At trial, co-defendant Webb testified that Gonzalez received a 100-kilogram

shipment of cocaine in October 2001. Co-defendants Power and Riebeling testified

that Gonzalez directed them to retrieve an additional sixty-kilogram shipment of

cocaine. This evidence is sufficient to support the district court’s finding that

Gonzalez was responsible for more than 150 kilograms of cocaine. See United States

v. Sarabia-Martinez, 276 F.3d 447, 450 (8th Cir. 2002) (in determining drug quantity

accountability, a district court may rely solely on the testimony of cooperating coconspirators). 

We have considered Gonzalez’s other arguments, some of which were raised

for the first time on appeal, and find they are without merit. The judgment and

sentence of the district court are affirmed. 

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