United States v. Alexei Jubiel

377 F. App'x 925
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 5, 2010
Docket09-10528
StatusUnpublished
Cited by2 cases

This text of 377 F. App'x 925 (United States v. Alexei Jubiel) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alexei Jubiel, 377 F. App'x 925 (11th Cir. 2010).

Opinion

PER CURIAM:

Alexei Jubiel, Diego Diaz de la Cruz (Cruz), and Omar Silva Medina (Silva) appeal their convictions and sentences for conspiracy to possess with intent to distribute five kilograms or more of cocaine (Count I); attempt to possess with intent to distribute five kilograms or more of cocaine (Count II); conspiracy to affect interstate commerce by means of robbery (Count III); attempt to affect interstate commerce by means of robbery (Count IV); conspiracy to use and possess a firearm in furtherance of a crime of violence and a drug trafficking offense (Count V); and carrying a firearm in furtherance of a crime of violence and a drug trafficking offense (Count VI). Each Appellant asserts several issues on appeal. We address each of the issues in turn and affirm their convictions and sentences.

I.

All Appellants challenge the district court’s admission of video and audio tapes taken by police, along with the English transcripts interpreting the conversations thereon. Appellants assert that because the videos contained several segments that were inaudible and a minor translation error, they were unreliable. Appellants also claim the district court plainly erred when it did not require the court reporter to type the transcripts or a description of the tapes into the record to allow for appellate review.

When, as here, defendants did not object to the admission of tapes or transcripts at trial, we review their admission for plain error. See United States v. Raad, 406 F.3d 1322, 1323 (11th Cir.2005). “Plain error occurs where (1) there is an error; (2) that is plain or obvious; (3) [that affects] the defendant’s substantial rights in that it was prejudicial and not harmless; and (4) that seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Id. (quotations omitted). “Before an error is subject to cor *929 rection under the plain error rule, it must be plain under controlling precedent or in view of the unequivocally clear words of a statute or rule.” United, States v. Lett, 483 F.3d 782, 790 (11th Cir.2007).

We have not adopted a “formulistic standard” regarding the admission of videotapes and transcripts into evidence. United States v. Greenfield, 574 F.2d 305, 307 (5th Cir.1978). 1 “Tapes are not per se inadmissible because they are partially inaudible; the issue is whether the unintelligible portions are so substantial as to render the recording as a whole untrustworthy.” Id. (quotations omitted). “This determination is left to the sound discretion of the trial judge.” Id. (quotations omitted). Where a tape is in a language other than English, we have suggested a party challenging the submission of an English-language transcript utilize the following procedures:

Initially, the district court and the parties should make an effort to produce an “official” or “stipulated” transcript, one which satisfies all sides. If such an “official” transcript cannot be produced, 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.

United States v. Le, 256 F.3d 1229, 1238 (11th Cir.2001) (quoting United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir.1985)).

Appellants did not object to tapes or transcripts at trial and have failed to demonstrate any plain error associated with their admission. The only mistranslation they have cited was insubstantial and was corrected by stipulation at the trial. 2 Appellants did not attempt to offer their own translation of the tapes, nor do they point to any problem with the ultimate translation provided. With respect to Appellants’ argument the district court deprived them of a fair opportunity for appellate review by not directing the court reporter to describe the video and audio recordings in the trial transcript and by not including the transcripts in the record on appeal, we note the tapes and transcripts were introduced into evidence at trial. Therefore, they should have been available at the district court for appellate counsel to review. Moreover,' the Appellants have not moved to supplement the record on appeal with the tapes or transcripts. Appellants provide nothing other than vague speculation to suggest they were unfairly prejudiced by the admission of the tapes and transcripts at trial. The district court did not plainly err in admitting the tapes and transcripts into evidence.

II.

All Appellants next contend the district court committed reversible error in admitting testimony Appellants had previously committed other crimes. They claim this violated Rules 404(b) and 403 of the Federal Rules of Evidence. We review a district court’s evidentiary rulings, including a decision to admit evidence regarding a *930 defendant’s involvement in other crimes, for an abuse of discretion. United States v. Edouard, 485 F.3d 1324, 1343 (11th Cir.2007). Even if the district court made an erroneous evidentiary ruling, we need not reverse the defendant’s conviction if we conclude the error was harmless. United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.1999). An evidentiary error is harmless if it “had no substantial influence on the outcome and sufficient evidence uninfected by error supports the verdict.” Id. (quotation omitted).

The district court did not abuse its discretion in any way that substantially influenced the verdict. First evidence of Jubiel’s and Silva’s prior criminal activity was admissible under Rule 404(b) of the Federal Rules of Evidence. Extrinsic evidence “of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Fed.R.Evid. 404(b). Such evidence “may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. Jubiel and Silva claimed they did not know about the plan to rob the cocaine stash house and also argued their association with the group of co-defendants at the time of the conspiracy was unrelated to the crime. Thus, they put them intent at issue.

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Related

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Cite This Page — Counsel Stack

Bluebook (online)
377 F. App'x 925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alexei-jubiel-ca11-2010.