Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1983)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1025 (9th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,v.Maria Andrea VEGA, Defendant-Appellant.

No. 84-1355.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 1985.Decided Aug. 16, 1989.

John P. Vukasin, Jr., District Judge, Presiding.

Before POOLE and REINHARDT, Circuit Judges, and TERRY J. HATTER,*  District Judge.

MEMORANDUM** 

Maria Vega appeals her conviction for conspiracy to distribute and distribution of cocaine. Her principal contention is that the admission of a government agent's testimony, based in part upon hearsay translations by a bilingual informant, violated the Sixth Amendment's confrontation clause. She also argues that the prosecutor's reference in closing argument to documents not in evidence denied her a fair trial. We affirm.

I. FACTS

From May 27, 1983, to June 1, 1983, undercover Drug Enforcement Administration (DEA) Special Agent Robert Prezioso and government informant Ernesto Baigorria negotiated with Horacio Vega and his sister, Maria Vega, for the purchase of ten kilograms of cocaine. The negotiations occurred during several telephone calls and during two meetings on May 31 and June 1. Both meetings took place at the informant's place of business in South San Francisco. Prezioso was introduced as the informant's brother-in-law. After the initial telephone call, Prezioso understood that there was agreement that he would buy two kilograms of cocaine for $56,000 each, with the purchase of the remainder of the 10 kilograms to follow.

The negotiations for the cocaine transaction were conducted in a mix of English and Spanish. The Vegas speak Spanish and some English. Prezioso speaks English and understands some Spanish. Baigorria, the informant, speaks both English and Spanish fluently. During the negotiations the informant translated for both sides of the conversation when either side did not understand the other.

Prior to trial, the government moved for a ruling to permit Prezioso to testify about his conversations with Maria Vega and her brother in which the informant translated what was said in Spanish. Vega argued that Prezioso's testimony regarding the translations would be inadmissible hearsay and violate her Sixth Amendment right to confront witnesses against her. The government argued that Prezioso's testimony would be admissible under the present sense impression exception to the hearsay rule, Fed.R.Evid. 803(1). The judge stated that the evidence might qualify under that exception, but declined to admit it on such a broad basis and said it would be allowed in only insofar as it constituted Prezioso's personal knowledge of the conversations.

At trial, agent Prezioso testified about the conversations. The prosecution's questions were phrased to elicit only Prezioso's personal knowledge of what was said. During cross examination, Prezioso testified that the conversations were conducted largely in Spanish. Prezioso acknowledged that his understanding of the conversations depended in part upon what the informant told him had been said. Vega's motion to strike Prezioso's testimony concerning the conversations, based on the pretrial ruling, was denied.

In her motion for a new trial, Vega conceded that Prezioso's testimony about the telephone calls was based on his personal knowledge. She contended, however, that Prezioso did not understand the conversations which took place during the two face-to-face meetings between Prezioso, the informant, and the Vegas. She challenged the admission of Prezioso's testimony concerning the conversations at the meetings on the ground that Prezioso relied on the informant's hearsay translations. The district court denied the new trial motion, finding that Prezioso had testified based upon his knowledge and understanding of what was said, and that the present sense impression exception did apply because of the spontaneity of the contemporaneous translations.

Prezioso testified that at the May 31 meeting, he and the informant displayed $560,000 in cash to the Vegas for the purchase of ten kilograms of cocaine. The parties discussed why the deal had been delayed and when it would take place. According to Prezioso, Maria indicated that this was the largest transaction she and her brother had ever been involved in. During this meeting, the Vegas described different ways in which the cocaine could be tested.

In testifying about the June 1 meeting, Prezioso described when he first obtained the cocaine. Maria Vega arrived at the informant's place of business and indicated that her brother was nearby with the cocaine. Maria then received a phone call from her brother who arrived a short time later driving a Camaro. While the Vegas and Prezioso were counting the purchase money, Prezioso asked to see the cocaine. Maria said it was in the trunk of the car Horacio had arrived in. Horacio gave Prezioso the keys. Prezioso returned when he was unable to find the cocaine and said that it wasn't there. Maria replied, in English, "Yes, it is, Bobby." Horacio then said something in Spanish. Prezioso testified that he did not understand Horacio's statement except for the word "Camaro." The informant told Prezioso that Horacio had indicated the cocaine was by the spare tire in the trunk. Prezioso went back out to the car and found the cocaine in that location. The Vegas were arrested when Prezioso's attempt to obtain additional cocaine from the Vegas' source of supply failed.

II. DISCUSSION

A. Hearsay

Vega argues that the district court erred in permitting Prezioso to testify concerning the conversations because the agent's understanding of what was said was based on the informant's hearsay translations. We review the district court's order to admit evidence over a hearsay objection for an abuse of discretion. United States v. Jones, 766 F.2d 412, 415 (9th Cir. 1985); United States v. Soulard, 730 F.2d 1292, 1296 (9th Cir. 1984); United States v. Cowley, 720 F.2d 1037, 1040 n. 1 (9th Cir. 1983), cert. denied, 465 U.S. 1029 (1984).

The Federal Rules of Evidence provide a present sense impression exception to the hearsay rule for statements "describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Fed.R.Evid. 803(1). Availability of the declarant is immaterial to the admissibility of statements within this hearsay exception. The underlying theory of the present sense impression exception is that "substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation." Fed.R.Evid. 803(1) advisory committee note; United States v. Peacock, 654 F.2d 339, 350 (5th Cir. 1981), modified, 686 F.2d 356 (1982), cert. denied, 464 U.S. 965 (1983).

Three requirements must be satisfied before the present sense impression exception may be applied. The requirements pertain to subject matter, perception, and time. United States v. Portsmouth Paving Corp., 694 F.2d 312, 323 (4th Cir. 1982). The subject matter of the informant's translations, the "event or condition" that he described or explained, was the Spanish portion of the conversations. A conversation is an event for purposes of Rule 803(1), and the informant's translations clearly were made to explain to all parties what was said. See Portsmouth Paving Corp., 694 F.2d at 323 (telephone call is an "event" and statements describing telephone conversation made immediately after the call are within this exception); United States v. Earley, 657 F.2d 195, 197-98 (8th Cir. 1981) (same); Peacock, 654 F.2d at 350 (same).

The informant "perceived" the conversations that he translated. He was present at the meetings between the Vegas and Prezioso and participated in all arrangements for the cocaine transaction. Vega does not dispute the informant's knowledge of Spanish or ability to understand what was said.

Finally, the translations fall squarely within the time strictures of Rule 803(1). The informant's statements were contemporaneous descriptions of the Spanish portions of the conversations and related to events as they occurred. There was no possibility that the informant's memory would render his translations inaccurate and the circumstances provided little opportunity for fabrication. The Vegas spoke some English and Prezioso spoke some Spanish. Their knowledge functioned as a check on the accuracy of the translations. To protect his cover, the informant had to be accurate and had an incentive not to fabricate.

The prerequisites of the present sense impression exception to the hearsay rule were met in this case. The district court did not abuse its discretion in admitting under Rule 803(1) Prezioso's testimony recounting the informant's translations.

B. Confrontation Clause

Vega's claim that the Sixth Amendment to the United States Constitution provides, that " [i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *." Although the hearsay rules and the confrontation clause promote similar values, admissibility under a hearsay exception does not dissolve the court's obligation to review the record for constitutional infirmity. United States v. Tille, 729 F.2d 615, 621 (9th Cir.), cert. denied, ---, U.S. ----, 105 S. Ct. 156 (1984); United States v. Perez, 658 F.2d 654, 660 (9th Cir. 1981). Vega's claim that admission of the informant's translations through the testimony of Prezioso violated her rights under the confrontation clause to confront and cross-examine her accuser is without merit. We are not convinced that the confrontation clause is in fact implicated in this case, but even if it were, the decision in Bourjaily v. United States, 483 U.S. 171, 182-184 (1987) renders defendant's constitutional argument unavailing. There, Chief Justice Rehnquist made clear the broad ruling of the Court a year earlier when it decided United States v. Inadi, 475 U.S. 387 (1986);


While a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable, this Court has rejected that view as "unintended and too extreme." Ohio v. Roberts, 448 U.S. 56, 63 (1980). Rather, we have attempted to harmonize the goal of the Clause--placing limits on the kind of evidence that may be received against a defendant--with a societal interest in accurate factfinding, which may require consideration of out-of-court statements. To accommodate these competing interest, the Court has, as a general matter only, required the prosecution to demonstrate both the unavailability of the declarant and the "indicia of reliability" surrounding the out-of-court declaration. Id., at 65-66. Last Term in United States v. Inadi, 475 U.S. 387 (1986), we held that the first of these two generalized inquiries, unavailability, was not required when the hearsay statement is the out-of-court declaration of a co-conspirator. Today, we conclude that the second inquiry, independent indicia of reliability, is also not mandated by the Constitution.

The Court's decision in Ohio v Roberts laid down only "a general approach to the problem" of reconciling hearsay exceptions with the Confrontation Clause. See 448 U.S., at 65. In facts, Roberts itself limits the requirement that a court make a separate inquiry into the reliabiity of an out-of-curt statement. Because " 'hearsay rules and the Confrontation Clause are generally designed to protect similar values,' California v. Green, 399 U.S. [149, 155 (1970], and 'stem from the same roots,' Dutton v. Evans, 400 U.S. 74, 86 (1970)," id., at 66, we concluded in Roberts that no independent inquiry into reliability is required when the evidence "falls within a firmly rooted hearsay exception." Ibid. * * *

As we have set forth above, the present sense impression exception to the hearsay rule is an ancient and well-established doctrine evidence "which falls within a firmly rooted hearsay exception." We are satisfied that admission of the contemporaneous translations was well within the court's discretion.

Vega's final contention is that the prosecutor's reference to certain documents that were not admitted into evidence violated her right to a fair trial. During closing argument the prosecutor improperly referred to reports prepared by the DEA agents which had been marked as defense exhibits, but not introduced as evidence. The prosecutor said:

"Ladies and gentlemen, the theory now is that an undercover informant misbehaved, so let Maria Vega go. The theory is now that the agent can't remember all the times exactly, so let Maria Vega go.

What evidence has he [defense counsel] actually put in to show these so called enormous discrepancies? He has put the agents' D-6's into evidence, and I invite you to take them back and read them.

And, yes, some of the agents did testify 45 minutes off, an hour off. What he has done is made the agents human. They did not memorize the D-6's and spout them back to you perfectly. They went up there a year later and from the stand, testified from memory.

The question is: They are discrepancies in time, but does that mean the cocaine deal didn't happen? Does that mean that Maria Vega didn't show up? Does that mean that there was no transaction, there was no money?

Vega argues that she was prejudiced by these remarks because her case rested upon showing that the government witnesses' testimony was inconsistent with prior statements and the prosecutor put the prestige of his office behind the notion that no true discrepancies existed. The government contends that the prosecutor's comments stemmed from inadvertent mistake and were not deliberate remarks which amounted to vouching for the credibility of government witnesses.

Because Vega failed to object to the contested statements during the prosecutor's closing argument, we review under the plain error standard. United States v. Birges, 723 F.2d 666, 672 (9th Cir.), cert. denied, 466 U.S. 943 (1984); United States v. Parker, 549 F.2d 1217, 1222 (9th Cir.), cert. denied, 430 U.S. 971 (1977); Fed. R. Crim. P. 52(b). Improprieties in counsel's arguments to the jury do not constitute reversible error unless they are so gross as probably to prejudice the defendant, and the prejudice has not been neutralized by the trial judge. Birges, 723 F.2d at 672; United States v. Foster, 711 F.2d 871, 883 (9th Cir. 1983), cert. denied, 465 U.S. 1103 (1984); Parker, 549 F.2d at 1222.

In this case the prosecutor's error in referring to the DEA-6's was adequately cured by the district court. After being informed that the reports were not in evidence and that the jury had asked to examine them in their deliberations, the district court issued the following instruction:

You have the evidence that has been admitted in this trial and delivered to you. There was some reference and testimony to some DEA-6's, but those, in fact, were not admitted. Don't speculate as to why they were not admitted into evidence. It might have been one attorney's objection; it might have been another attorney's objection; and maybe neither one of them wanted it introduced. But don't speculate. You have the evidence in this case upon which your verdict must be based.

Defense counsel did not object to this instruction as inadequate to cure any prejudice that may have resulted from the prosecutor's argument. The instruction directly addressed the defendant's concern that it would appear she was trying to keep the DEA-6's from the jury. Vega has failed to demonstrate that the prosecutor's statements prejudiced her, or that any prejudice was not cured by the district judge's jury instruction. Therefore, the prosecutor's improper reference to the DEA-6's did not constitute reversible error or deprive Vega of her right to a fair trial.

To the extent that agent Prezioso's testimony was based on the informant's translations, the district court properly admitted the testimony under the present sense impression exception to the hearsay rule. Because admission of the agent's testimony did not violate Vega's rights to confrontation and the district court's instruction cured any prejudice resulting from the prosecutor's improper statements, we AFFIRM.

 *

The Honorable Terry J. Hatter, Jr., United States District Judge for the Central District of California, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

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