JAVIER MARIN, PETITIONER V. UNITED STATES OF AMERICA No. 89-6430 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A3) is unreported. JURISDICTION The judgment of the court of appeals was entered on November 8, 1989. The petition for a writ of certiorari was filed on January 11, 1990. This Court's jurisdiction is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court's failure to provide petitioner, a native speaker of Spanish, with Spanish-language transcripts of recorded Spanish conversations at the beginning of trial violated petitioner's rights under the Confrontation Clause. 2. Whether the evidence at trial showed multiple conspiracies instead of the single conspiracy charged in the indictment. STATEMENT After a jury trial in the United States District Court for the District of New Jersey, petitioner was convicted of conspiracy to distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C. 846. He was sentenced to 288 months' imprisonment, to be followed by five years' supervised release, and was fined $40,000 plus a special assessment of $50. The court of appeals affirmed (Pet. App. A1-A3). 1. The evidence at trial showed that petitioner participated in a conspiracy to possess and distribute cocaine which operated in New York, New Jersey, and Florida. Gov't C.A. Br. 14. Petitioner's co-defendant Eucaris Ceballos administered the conspiracy. Id. at 13. Ceballos purchased cocaine from petitioner and others and sold it to co-defendant Francisco Betancourt, among others. In October 1987, petitioner sold two to three kilograms of cocaine to Ceballos. Id. at 14. On another occasion, another co-conspirator, Nelson Barbosa, delivered $10,000 to petitioner from Ceballos and picked up ten kilograms of cocaine from petitioner for delivery to Ceballos. Ibid. Petitioner negotiated cocaine sales to Ceballos during recorded telephone conversatins. Ibid. Betancourt resold cocaine purchased from Ceballos through his own organization in New Jersey. Gov't C.A. Br. 15-16. This organization had numerous links to Ceballos. Betancourt spoke to Ceballos' employees to arrange cocaine transactions or to discuss drug-related matters. Id. at 24. A person with Betancourt's nickname was identified as a buyer of cocaine from Ceballos' organization. Id. at 25-26. When arrested, Betancourt possessed cocaine packaged like cocaine sold to Ceballos and later resold. Id. at 26. 2. After their arraignment in late 1987, the government furnished petitioner and his co-defendants with copies of taped telephone conversations that were intercepted in the course of the investigation of the conspiracy. Gov't Supp. C.A. App. 167. At the same time, the government made available to the defendants copies of preliminary English translations of the conversations, most of which were conducted in Spanish. Id. at 168. Prior to trial, the district court approved funds so that petitioner and his co-defendants could retain translators, translation services, and interpreters. C.A. App. 1404; Gov't Supp. C.A. App. 23, 26. Also prior to trial, in February 1980, the defendants informed the district court that they would have their own transcripts of the conversations prepared. C.A. App. 3118-3120. The district court granted a substantial continuance of the trial date so that the defendants could review the tapes and transcripts. Id. at 1129, 3118-3120. Two months before trial, on April 8, 1988, the government furnished the defendants with a copy of every tape and every transcript that it intended to offer at trial. Id. at 1128-1129, Gov't Supp. C.A. App. 25. As petitioner concedes (Pet. 5), an interpreter was available to help him understand the proceedings and communicate with his counsel during trial. Gov't Supp. C.A. App. at 27, 33-34. Petitioner and his co-defendants initially did not seek to introduce their own transcripts of the taped conversations, because, according to counsel for co-defendant Ceballos, the translation service hired by the defense had concluded that there was "no substantive problem" with the government's translations. C.A. App. 1406. On the 18th day of trial, the defense objected for the first time that the transcripts prepared by the government were inadequate because they did not contain a Spanish transcription alongside the English translation. Id. at 1412. The district court overruled this objection. When petitioner sought permission from the district court during trial to prepare Spanish transcripts, however, the the dist court granted petition and his co-defendants a nineteen-day continuance before the start of the defense case to go over the tapes. Gov't Supp. C.A. App. at 114. After this recess, petitioner produced Spanish transcripts of 18 of the recorded conversations. Id. at 115. 3. At the close of the government's case, petitioner and his co-defendants moved for judgment of acquittal on the ground that the government had not proved a single conspiracy. After briefing on this issue, the district court denied this motion, finding that there was "ample evidence" of a single conspiracy involving both Ceballos and Betancourt. C.A. App. 2736-2737. At the close of trial, the district court instructed the jury that to convict a defendant of the conspiracy charged in the indictment, it had to find that the conspiracy existed and that the defendant knowingly and willfully became a member of that conspiracy. Id. at 2929, 2934. After trial, the district court denied the defendants' renewed motion for judgment of acquittal on the ground that the government had proved multiple conspiracies. The court found that each of the defendants shared the single goal of distributing narcotics and that petitioner had furthered that goal by supplying cocaine to Ceballos. Id. at 2975-2976. 4. The court of appeals affirmed in a brief judgment order that summarily rejected petitioner's contentions that he had been "denied the right to a meaningful confrontation and cross-examination by the government's failure to provide a Spanish transcript of the wire taps introduced by the government," and that he "suffered substantial prejudice from being charged and tried for a single conspiracy by evidence which proved not one but two conspiracies." Pet. App. A2. ARGUMENT 1. Petitioner renews his contention (Pet. 4-6) that the failure to provide Spanish-language transcripts of the largely Spanish recorded conversations introduced at trial deprived him of his right effectively to cross-examine the witnesses against him. This claim is without merit. Petitioner did not request Spanish transcriptions of the tape-recorded conversations until well into the trial. When petitioner sought preparation of Spanish transcripts during trial, the district court granted petitioner's request for a continuance to prepare the transcripts. Thus, the government's failure to prepare Spanish transcripts prior to petitioner's request requires reversal only if it rises to the level of plain error. See Fed. R. Crim. P. 52(b). To show plain error, petitioner must show an egregious error rising to the level of a miscarriage of justice. See United States v. Young, 470 U.S. 1, 15-16 (1985). Petitioner cannot show error under any standard. The intercepted conversations introduced at trial were conducted in Spanish, petitioner's native language. When the tapes were played in the courtroom, petitioner was uniquely well-situated to understand them; it is difficult to see what additional assistance would have been provided by a Spanish-language transcript. Moreover, petitioner had the services of an interpreter prior to and during trial. Thus, petitioner could prepare for trial by reviewing the tapes and discussing them with his attorney through the interpreter. In addition, petitioner had over six months prior to trial, as well as substantial resources provided by the district court, to prepare his own transcripts and translations. As the trial judge noted, he had "adopted virtually every procedure which (he) and defense counsel could seize upon to deal with (the taped conversations)." C.A. App. 1404. Petitioner had ample means to prepare for cross-examination of the government's witnesses. In any event, petitioner has not shown a violation of the Confrontation Clause. That Clause primarily guarantees the opportunity to cross-examine witnesses at trial. See Kentucky v. Stincer, 482 U.S. 730, 739 (1987); Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam). Petitioner has not identified any witness whom he was not able to cross-examine because of the lack of Spanish transcripts. Nor has he explained how the lack of the transcripts had a negative impact on his ability to elicit any testimony on cross-examination. Because petitioner has not claimed that the trial court placed any direct limits on the scope or nature of his cross-examination of the government's witnesses, see Delaware v. Van Arsdale, 475 U.S. 673, 679-680 (1986), and has not shown that the lack of Spanish transcripts of the recorded conversations had any such effect, his claim does not merit review. 2. Petitioner also contends (Pet. 6-7) that the district court erred in concluding that the government had shown a single conspiracy at trial. In particular, petitioner argues that the evidence at trial showed one conspiracy involving Betancourt and another involving Ceballos. He claims that, because there was allegedly only scanty evidence of petitioner's own criminal liability, he was prejudiced by unspecified "inflammatory" evidence that was admissible only because the two assertedly independent conspiracies were tried as one. This fact-laden claim does not merit review. To succeed on this claim, petitioner must demonstrate that there was a variance between the indictment and the proof and that the variance prejudiced his substantial rights. See Kotteakos v. United States, 328 U.S. 750, 756 (1946). The question whether the government's evidence shows a single or multiple conspiracies is one of fact for the jury. See United States v. Friedman, 854 F.2d 535, 561 (2d Cir. 1988), cert. denied, 109 S. Ct. 1637 (1989); United States v. Tarantino, 846 F.2d 1384, 1391 (D.C. Cir.), cert. denied, 109 S. Ct. 108 (1988); United States v. Champion, 813 F.2d 1154, 1165 (11th Cir. 1987); United States v. Smith, 789 F.2d 196, 200 (3d Cir.), cert. denied, 479 U.S. 1017 (1986). A reviewing court should not disturb a jury's determination that a single conspiracy existed unless no rational trier of fact could have reached that conclusion. See Glasser v. United States, 315 U.S. 60, 80 (1942). /1/ In this case, the indictment straightforwardly alleged that between April 1987 and November 17, 1987, Ceballos, Betancourt, petitioner, and several others conspired to distribute and to possess with intent to distribute more than five kilgrams of cocaine. At trial, the government proved that petitioner and others sold cocaine to Ceballos and her organization and that Ceballos resold cocaine to Betancourt,among others. Betancourt and his organization then resold the cocaine. Petitioner concedes (Pet. 7) that the Ceballos and Betancourt groups "may have been striving toward the same purpose." Moreover, contrary to petitioner's claim, the evidence showed numerous links between Ceballos and Betancourt. In particular, the government introduced wiretap evidence of Betancourt speaking to one of Ceballos' couriers about drug deliveries; a co-conspirator testified at trial that someone with Betancourt's nickname was a customer of Ceballos; and cocaine found in Betancourt's apartment was wrapped in a distinctive shape unique to cocaine delivered to Ceballos. Based on this evidence, the jury and the district court could conclude that the government had proved a single conspiracy. Consequently, petitioner's claim to the contrary is without merit, and review is unwarranted. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, Jr. Assistant Attorney General J. DOUGLAS WILSON Attorney MAY 1990 /1/ Petitioner makes no claim that the evidence at trial constructively amended the indictment, in violation of his Fifth Amendment right to be tried on an indictment returned by a grand jury. See United States v. Miller, 471 U.S. 130 (1985).