Unpublished Disposition, 888 F.2d 1394 (9th Cir. 1987)

MEMORANDUM

Saballa appeals from his conviction, following a jury trial, for conspiracy to distribute cocaine. Saballa contends that the district court erred by (1) refusing to dismiss the indictment against him because it failed to state an offense against the United States with the requisite particularity, and (2) admitting tape recordings of a conversation between Saballa and a government informant and a transcript of that conversation because they were unfairly prejudicial. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

* On August 27, 1987, Saballa was indicted on one count of conspiracy to distribute cocaine. At trial, Copeland, a detective with the Yakima County Sheriff's Department who was assigned to work for the Drug Enforcement Administration (DEA), testified that he informed Saballa through DEA informant Hewson of his desire to make cocaine purchases. Both Saballa and Hewson were prisoners at the Shelton Correctional Center in Washington at the time of Copeland's four attempts to purchase cocaine. Hewson testified that after he conveyed Copeland's requests to purchase cocaine, Saballa arranged for the sales outside the prison.

The government offered into evidence two tapes of a recorded conversation between Hewson and Saballa, as well as a written transcript of the recording. This conversation disclosed Saballa's knowledge and involvement in the distribution of cocaine between his co-conspirators and Copeland. Saballa objected to the admission of the tapes on the ground that its inaudible portions made it "unfair." Saballa also objected to admission of the transcript on the ground that it was "inherently inaccurate." The district court overruled both of Saballa's objections, and gave the jury the opportunity to listen to the tape and compare it to the transcript.

Before the end of his trial, Saballa moved to dismiss the indictment on the ground that it was deficient because it failed to specify an overt act in furtherance of the conspiracy. The district court denied Saballa's motion because it found that the indictment put Saballa fairly on notice as to the charges against him.

II

We review the sufficiency of an indictment independently. United States v. Benny, 786 F.2d 1410, 1414 (9th Cir.), cert. denied, 479 U.S. 1017 (1986). The indictment reads as follows:

COUNT 1

That on or before July 23, 1987, and through August 24, 1987 in the Eastern District of Washington and elsewhere, FRANK SABALLA, RICARDO LARIOS, SALVADOR LUNA-MARTINEZ, and JESUS LANDEROS MORALES and others unknown to the Grand Jury did violate 21 U.S.C. 846 in that they did willfully and knowingly did combine, conspire, confederate and agree together to commit the following offense against the United States, to wit: to distribute cocaine, a Schedule II narcotic controlled substance, in violation of 21 U.S.C. 841(a) (1).

COUNT 2

That on or about July 23, 1987, in the Eastern District of Washington, RICARDO LARIOS did knowingly, willfully and unlawfully distribute cocaine, a Schedule II narcotic controlled substance, in violation of 21 U.S.C. 841(a) (1).

COUNT 3

That on or about July 28, 1987, in the Eastern District of Washington, RICARDO LARIOS did knowingly, willfully and unlawfully distribute cocaine, a Schedule II narcotic controlled substance, in violation of 21 U.S.C. 841(a) (1).

COUNT 4

That on or about August 24, 1987, in the Eastern District of Washington, SALVADOR LUNA-MARTINEZ and JESUS LANDEROS MORALES did knowingly, willfully and unlawfully possess with the intent to deliver approximately one kilo of cocaine, a Schedule II narcotic controlled substance, in violation of 21 U.S.C. 841(a) (1).

Saballa contends that the district court erred by refusing to dismiss his indictment because it did not properly charge him with an offense against the United States. He first asserts that Count 1, which charged him with conspiracy, failed to allege an overt act.

"An indictment is sufficient if it contains the elements of the charged crime in adequate detail to inform the defendant of the charge and to enable him to plead double jeopardy." United States v. Buckley, 689 F.2d 893, 896 (9th Cir. 1982), cert. denied, 460 U.S. 1086 (1983), citing Hamling v. United States, 418 U.S. 87, 117-18 (1974). An indictment alleging a conspiracy under 21 U.S.C. § 846 is sufficient if it alleges "a conspiracy to distribute drugs, the time during which the conspiracy was operative and the statute allegedly violated, even if it fails to allege or prove any specific overt act in furtherance of the conspiracy." United States v. Tavelman, 650 F.2d 1133, 1137 (9th Cir. 1981) (Tavelman), (internal quotation omitted) (emphasis added), cert. denied, 455 U.S. 939 (1982). Thus, our holding in Tavelman makes it clear that the district court did not err by refusing to dismiss Count 1 of the indictment for failure to allege an overt act.

Saballa also contends that the indictment is inadequate because it fails to allege a sufficiently specific time frame. He relies on United States v. Cecil, 608 F.2d 1294 (9th Cir. 1979). In Cecil, the indictment was inadequate because it "failed to place the conspiracies within any time frame." Id. at 1297. The indictment alleged only that there was a conspiracy "beginning on or before July, 1975, and continuing thereafter until on or after October, 1975." Id. at 1295. The indictment was "open-ended in both directions." Id. at 1297. In contrast, the indictment under which Saballa was charged alleges a conspiracy "on or before July 23, 1987, and through August 24, 1987." While the indictment does use the "on or before" language of Cecil, it is not "open-ended in both directions." It also alleges specific days, rather than months, by which time the conspiracy must have at least started and ended. We thus conclude that the indictment provided Saballa with adequate notice of the operative time period. See United States v. McCown, 711 F.2d 1441, 1450 (9th Cir. 1983) (holding an indictment sufficient where it alleged a conspiracy "from on or about June 17, 1981, to on or about October 10, 1981"). Therefore, the district court did not err in denying Saballa's motions to dismiss his indictment. See Tavelman, 650 F.2d at 1137.

III

Saballa next contends that the district court erred by admitting into evidence the tape recordings and the transcript. We review admission of a defendant's tape-recorded statements for an abuse of discretion. Cape v. United States, 283 F.2d 430, 435 (9th Cir. 1960). The trial judge has wide latitude in the admission of evidence. Lies v. Farrell Lines, Inc., 641 F.2d 765, 773 (9th Cir. 1981).

Unfortunately, Saballa's brief on this evidentiary issue is not a model of clarity. To support his contention that the tapes and transcript were improperly admitted, Saballa only cites United States v. King, 587 F.2d 956 (9th Cir. 1978), which addressed the issue of what constitutes a proper foundation for the introduction of sound recordings at trial. He cites no other authority. The brief then argues both whether a proper foundation was laid to admit the tapes and transcript and whether the evidence, once admitted, was unfairly prejudicial in light of the tapes' omissions.

Saballa's argument that there was not a proper foundation for admitting the tape and transcript is not properly before us. Saballa failed to object timely to the admission of this evidence on the ground that it lacked an adequate foundation. He waited until after the transcript was read to the jury and then added a foundation objection. But he failed to bring a motion to strike the evidence. There was nothing at that point for the district judge to rule upon. Accordingly, the foundation for admitting the tape and transcript cannot be challenged on appeal. See Fed. R. Crim. P. 51; see also United States v. Wilson, 690 F.2d 1267, 1273-74 (9th Cir. 1982) ("if no objection is made at the time the evidence is offered and received, its admission generally cannot be challenged on appeal"), cert. denied, 464 U.S. 867 (1983).

Saballa's second contention is that the inaudible portions of the tapes render the tapes and transcript unfair per se. We decline to adopt this novel proposition. It is the law of this circuit and others that " [a] recorded conversation is generally admissible unless the unintelligible portions are so substantial that the recording as a whole is untrustworthy." United States v. Lane, 514 F.2d 22, 27 (9th Cir. 1975) (Lane), citing Monroe v. United States, 234 F.2d 49, 55 (D.C. Cir.), cert. denied, 352 U.S. 873 (1956). We have also held that a partial transcript of a recorded conversation is admissible as an aid to the jury where the jury is allowed to listen to the tape if it so chooses. United States v. Tornabene, 687 F.2d 312, 317 (9th Cir. 1982).

Saballa has not questioned, much less demonstrated, that any portion of the tape or transcript is inaccurate or a false representation of the actual conversation. Saballa does not dispute that the part that was reproduced was an accurate reproduction of the conversation it purported to reproduce. Instead, he merely asserts that the tape is inaccurate due to its inaudible portions. In light of our limited standard of review, this argument is inadequate. In this case, the transcript read to the jury added nothing which was not audible on the tape itself, and the jury was given the opportunity to listen to the tape during its deliberation. Furthermore, Agent Copeland testified without challenge that from the recording he was "able to discern a lot of conversation that took place." Under these circumstances, we cannot say with confidence that the "unintelligible portions [of the tapes] are so substantial that the recording as a whole is untrustworthy." Lane, 514 F.2d at 27. Therefore, we conclude that the district court did not abuse its discretion by admitting the tapes and transcript into evidence.

AFFIRMED.