United States v. Garcia

16 F.3d 341, 1994 WL 32071
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 8, 1994
DocketNos. 92-10494, 92-10607, 92-10661, 92-10664, 92-10665 and 92-10667
StatusPublished
Cited by14 cases

This text of 16 F.3d 341 (United States v. Garcia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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. Garcia, 16 F.3d 341, 1994 WL 32071 (9th Cir. 1994).

Opinion

ALARCON, Circuit Judge:

Fernando Alearez-Ochoa (Alcarez-Ochoa) and Benito Rubio-Garcia (Rubio-Garcia) appeal from their judgment of conviction for possession of cocaine with the intent to distribute it, and conspiracy to distribute 500 kilograms of cocaine. They contend that the court erred prejudicially in admitting the testimony of Drug Enforcement Administration Special Agent Tim Sellers concerning incriminating statements made by Alearez-Ochoa and Rubio-Garcia during a narcotics transaction which were translated into English by Jose Garcia, a co-conspirator. We affirm because we conclude that the district court properly applied the relevant factors set forth in United States v. Nazemian, 948 F.2d 522 (9th Cir.1991), in admitting the testimony of Special Agent Sellers. In an unpublished memorandum decision filed today, we address the remainder of appellants’ challenges to their convictions.

I.

Alcarez-Ochoa and Rubio-Garcia were members of a conspiracy that agreed to sell 500 kilograms of cocaine to Special Agent Sellers, who was acting in an undercover capacity. On June 17, 1991, Alcarez-Ochoa and Rubio-Garcia, along with other members of the conspiracy, spoke at length with Special Agent Sellers regarding the 500 kilogram drug transaction along with the possibility of arranging future cocaine deals. These discussions occurred at a hotel in Tucson, Arizona. Neither Rubio-Garcia nor Alcarez-Ochoa spoke English, and Special Agent Sellers did not speak Spanish fluently. Therefore, their statements were translated by Jose Garcia, a co-conspirator of Alearez-Ochoa and Rubio-Garcia. Jose Garcia had initiated the negotiations with Special Agent Sellers.

On June 18th, Special Agent Sellers spoke again with Alcarez-Ochoa at a residence located in Tucson, Arizona. While awaiting the delivery of the cocaine, Jose Garcia was present and translated their conversation. Alcarez-Ochoa, Jose Garcia, and additional co-conspirators were arrested within minutes after they showed Special Agent Sellers and Special Agent Michael Carver 40 one-kilogram bricks of cocaine which were located in a bedroom at the residence. Special Agent Sellers and Special Agent Carver subsequently departed for the hotel, where they arrested Rubio-Garcia in his room.

II.

Alcarez-Ochoa and Rubio-Garcia contend that the district court erred by admitting the testimony of Special Agent Sellers regarding the statements they made in Spanish while in the officer’s presence on June 17th and 18th. We review alleged Confrontation Clause violations de novo. United States v. George, 960 F.2d 97, 99 (9th Cir.1992). If a violation of the Confrontation Clause is demonstrated, the Government must persuade this court that the error is harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986).

Alcarez-Ochoa and Rubio-Garcia cite United States v. Nazemian, 948 F.2d 522 (9th Cir.1991), in support of their argument. In Nazemian, the district court allowed an undercover agent from the Drug Enforcement Administration (DEA) to relate the statements made in his presence by the defendant. The defendant’s words were translated by a friend of the officer’s confidential informant. Id. at 525. The interpreter did not testify. Id. Nazemian argued that it was error to permit the DEA agent to testify regarding statements made in a language he did not understand. Id. We noted in Naze-mian that whether the DEA agent’s testimony created a Confrontation Clause or a hearsay problem depended upon who was considered the declarant. If the translator is acting as an agent of the defendant, his pre-arrest statements are admissible as admissions, and are not hearsay. Id. at 525-26. We determined that the question whether “the translated statements fairly should be considered the statements of the speaker” required an analysis of the facts on a case-by-case basis. Id. at 527. We reasoned that the following four factors should be considered when making this evaluation: “(1) which party supplied the interpreter, (2) whether the interpreter had any motive to mislead or distort, (3) the interpreter’s qualifications [343]*343and language skill, and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated.” Id.

Alcarez-Ochoa and Rubio-Garcia argue that Jose Garcia was not supplied by either party but rather was acting as a middleman who stood to profit if the deal was consummated. A review of the record supports the district court’s finding that Jose Garcia was “on the selling side of the transaction” and was more closely aligned with the co-conspirators than with the purchaser, Special Agent Sellers.

At the time the conversation occurred, Jose Garcia was acting on behalf of his co-conspirators to bring about the successful completion of a cocaine transaction. While it is true that Jose Garcia had been promised $1,000 for each kilogram he sold, it was Jose Garcia who brought his suppliers into the transaction. Like real estate agents in some states, Jose Garcia represented both the buyer and the seller. He was not, however, knowingly representing the Government.

Alcarez-Ochoa and Rubio-Garcia also assert that Jose Garcia had a motive to mislead Special Agent Sellers because his interest was to ensure that the deal was completed in order to obtain his commission. The record does not support this argument. The challenged statements concerned the delivery of 500 kilograms of cocaine and whether the purchase money or narcotics would be shown first. Precisely because Jose Garcia stood to receive $500,000 if the transaction was consummated, he would not have misrepresented the buyer’s or sellers’ conditions for the exchange because any falsehood would be readily apparent.

Alcarez-Ochoa and Rubio-Garcia contend that Jose Garcia was not a reliable translator. Special Agent Sellers testified that Jose Garcia indicated that he could speak Spanish and would serve as a translator for the group. Special Agent Sellers had previously heard Jose Garcia speak Spanish. The officer also knew that Jose Garcia was from a Spanish speaking family whose members had business dealings in Mexico. In this matter, Jose Garcia served as a translator during multiple conversations with the co-conspirators. If Jose Garcia had either lied or misinterpreted the translated communications, the meetings between Special Agent Sellers and the co-conspirators would have concluded quickly since the parties would have been unable to establish a meeting of the minds regarding the 500 kilogram drug transaction. See Nazemian, 948 F.2d at 528 (interpreter’s competence demonstrated by serving as translator during multiple meetings).

The district court found that Special Agent Sellers was able to confirm, through his understanding of Spanish, that Jose Garcia had the requisite qualifications and language skills to translate accurately. The trial judge also noted that Special Agent Sellers’ partial Spanish speaking ability distinguished this matter from the circumstances in Nazemian. These findings are not clearly erroneous.

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