United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING UNITED
STATES' MOTION IN LIMINE TO ALLOW TRANSCRIPTS CONTAINING
ENGLISH TRANSLATIONS OF RECORDED SPANISH
MATTER comes before the Court on the United States'
Motion in Limine to Allow Transcripts Containing English
Translations of Recorded Spanish Conversations as Substantive
Evidence filed on February 16, 2017 (Doc. 59). Having
reviewed the parties' briefs and applicable law, and the
oral arguments of counsel presented at the hearing on March
6, 2017, the Court finds that the Motion is well-taken and
is, therefore, GRANTED.
relevant background facts are set out in the Memorandum
Opinion and Order denying Defendant's motion to suppress
(Doc. 38) as well as the Government's brief (Doc. 59).
This case began with a traffic stop for an improper lane
change conducted by Bernalillo County Sherriff's Deputy
Leonard Armijo. A canine search led to a further search that
uncovered about $65, 020 in U.S. currency. Defendant is
charged with Conspiracy to Commit Bulk Cash Smuggling in
violation of 18 USC §371, Bulk Cash Smuggling in
violation of 31 USC §5332(a)(1) and (b) and Aiding and
Abetting (18 USC §2).
United States asks the Court to admit English translations of
conversations that were recorded in Spanish. The Government
states that ordinarily the recordings themselves constitute
evidence, and the transcripts are merely demonstrative aids
to help the jurors understand the evidence. See
Tenth Circuit Criminal Pattern Jury Instruction 1.40.
However, this rule cannot logically apply to a recording in a
foreign language, which jurors are not required to understand
in order to be qualified for jury duty. The United States
points to United States v. Curbelo, 726 F.3d 1260,
1276 (11th Cir. 2013), where the Eleventh Circuit held the
district court properly admitted English translations of
wiretap recordings of Spanish conversations. Specifically,
the court held the translated conversations did not violate
the Confrontation Clause. See Id. at 1272. The court
reasoned, “[i]nsofar as the transcripts are simply
English versions of Diaz's telephone conversations, they
do not contain any hearsay statements by the
translator. The Confrontation Clause only applies to
testimonial statements that are used to establish ‘the
truth of the matter asserted.' But the transcripts in
this case did not contain any express ‘assertions'
by the translator that could be true or false.”
Id. (internal citation omitted).
Tenth Circuit indirectly addressed this issue in United
States v. Valenzuela, 484 F.App'x 243, 246 (10th
Cir. 2012), where “the government introduced into
evidence eighteen recorded wiretap conversations in Spanish,
each of which was accompanied by a Spanish transcript and an
English translation. Most of the recordings were played to
the jury. An English translator testified as to the contents
of the conversations.” Although the court did not flesh
out the basis for finding the English transcripts to be
proper under the circumstances, the decision illustrates the
propriety of admitting into evidence English translations of
Spanish conversations in order to enable the jury to
understand the evidence.
Response, Defendant agrees the Court has discretion to allow
the jurors to receive the English transcript of the
recordings. However, Defendant emphasizes that transcripts
are merely aids to follow the testimonial evidence. Defendant
urges the Court to exercise caution in allowing the
transcripts to be sent to the jury as substantive evidence.
Defendant does not challenge the accuracy of the English
translations, nor does he make any suggestion that the
transcript is inaccurate.
Court admits the English translations of the Spanish language
recorded conversations as substantive evidence in this case.
Transcripts of recorded conversations are admissible even
where actual recordings are admitted to assist the trier of
fact, and their admission is within the discretion of the
trial court. See United States v. Devous, 764 F.2d
1349, 1354-55 (10th Cir. 1985) (“[t]he admission of
transcripts to assist the trier of fact, like the admission
of tapes of marginal quality, lies within the discretion of
the trial court.”); United States v. Gomez, 67
F.3d 1515, 1525-26 (10th Cir. 1995) (in case where recorded
calls themselves were admitted, “the district court did
not abuse its discretion in admitting the transcripts and,
therefore, committed no error.”).
question is whether the transcript is an accurate rendition
of the taped conversation, and there are different ways to
approach this determination. See Devous, 764 F.2d
1349. It is expected that the Government will lay a proper
foundation for these transcripts. The testimony of either the
stenographer (transcriber) or a participant in the actual
conversation that the transcript is correct is sufficient to
authenticate. United States v. Rochan, 563 F.2d
1246, 1251 (5th Cir. 1977).
the use of English transcripts will assist the jury in
understanding the evidence, the Court grants the United
States' Motion in Limine (Doc. 59). The
conversations at issue here were recorded in Spanish. It is
not a requirement of the jurors to understand Spanish in
order to serve on the jury. Without the English transcripts
of the conversations, those jurors not fluent in the Spanish
language will be unable to understand the evidence.
Therefore, the Court admits the transcripts as substantive
evidence in this case. The parties do not dispute that it is
entirely within the Court's discretion to allow such
evidence. See Devous, 764 F.2d at 1354-55. The
United States shall lay a proper foundation for the English
transcripts. The testimony of either the transcriber or a
participant in the actual conversation will suffice.
See also United States v.
Eberhart, 434 F.3d 935, 938-39 (7th Cir. 2006) (finding
that it is not error to introduce tapes and transcripts into
evidence, even when some variation between tapes and
transcripts exists, when other portions of the recording
support the content of the transcript); United States v.
White, 219 F.3d 442, 448-49 (5th Cir. 2003) (ruling
admission of transcript was not abuse of discretion when FBI
agent testified as to unintelligible portions of the document
and a cautionary instruction was given); United States v.
Delpit, 94 F.3d 1134, 1147 (8th Cir. 1996) (“It is
well settled that the jury may use transcripts of wiretapped
conversations during trial and deliberations.”);
United States v. Font-Ramirez, 944 F.2d 42, 49 (1st
Cir. 1991) (“It is ...