United States v. Alvelais

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 4, 2000
• Docket: 99-10370
• Status: Unpublished

Opinion

No. 99-10370 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10370 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGELIO ALVELAIS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:98-CR-221-1-X -------------------- May 3, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Rogelio Alvelais appeals after being convicted of conspiring

to possess with intent to distribute and to distribute cocaine,

unlawfully using a communication facility, and aiding and

abetting the possession of cocaine with intent to distribute.

The Government has filed a motion to supplement the record, which

is GRANTED.

On appeal, Alvelais first challenges the district court’s

decision to admit into evidence Government-proferred transcripts

which translated recorded conversations from Spanish into

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-10370 -2-

English. He maintains that the Government failed to authenticate

the transcripts because its translator failed to certify the

accuracy of the transcripts. He further maintains that the

admission of the transcripts into evidence constituted an abuse

of discretion, particularly when there was an official court

interpreter present who could have translated the conversations.

Alvelais’ argument is unavailing. Jesus Gallo, a special agent

with the Drug Enforcement Administration who was a party to each

of the recorded conversations and whose native language is

Spanish, testified that he had reviewed the English transcripts

while listening to the tapes and that the transcripts were

accurate translations of the tapes. That testimony was

sufficient to authenticate the transcripts. See United States v.

Sutherland, 656 F.2d 1181, 1201 (5th Cir. 1981); United States v.

Rochan, 563 F.2d 1246, 1251-52 (5th Cir. 1977). Accordingly, the

district court did not abuse its discretion when it admitted the

transcripts into evidence. See United States v. Thompson, 130

F.3d 676, 683 (5th Cir. 1997).

Alvelais next contends that the district court made comments

at trial which violated his right to due process. He points to

three examples in the record, two of which he concedes the

district court made outside the presence of the jury. The

comments referenced by Alvelais, however, do not “amount to an

intervention that could have led the jury to a predisposition of

guilt by improperly confusing the function of the judge and

prosecutor.” See id. at 685 (internal quotations and citations

omitted). Accordingly, Alvelais has not shown any error, plain No. 99-10370 -3-

or otherwise, with respect to this issue. See id. at 685 n.14;

United States v. Iredia, 866 F.2d 114, 119 (5th Cir. 1989);

United States v. Davis, 752 F.2d 963, 974-75 (5th Cir. 1985).

Alvelais also contends that his prosecution violated the

Speedy Trial Act. This contention is without merit given the

numerous pretrial motions filed by his codefendants. See

18 U.S.C. § 3161(c)(1), (h)(1)(F); United States v. Franklin, 148

F.3d 451, 455 (5th Cir. 1998).

Finally, Alvelais maintains that there is insufficient

evidence to support his conviction for aiding and abetting the

possession of cocaine with intent to distribute.1 As the

Government points out, review is for plain error only because

Alvelais failed to renew his motion for judgment of acquittal at

the close of all evidence. See United States v. McCarty, 36 F.3d

1349, 1358 (5th Cir. 1994). Because the record contains evidence

pointing to Alvelais’ guilt for aiding and abetting the

possession of cocaine with intent to distribute and because that

evidence is not “so tenuous that a conviction would be shocking,”

no miscarriage of justice has occurred. See id. (internal

quotations and citation omitted); United States v. Crooks,

83 F.3d 103, 106 (5th Cir. 1996). Accordingly, the district

court’s judgment is AFFIRMED.

MOTION TO SUPPLEMENT THE RECORD GRANTED; JUDGMENT AFFIRMED.

1 Alvelais does not challenge his conviction under 21 U.S.C. § 846 for conspiracy or his convictions under 21 U.S.C. § 843(b) for unlawful use of a communication facility.