USCA11 Case: 21-13835 Date Filed: 11/23/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13835
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILIS A. SANTIAGO RIVERA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cr-00406-TPB-TGW-7
____________________
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2 Opinion of the Court 21-13835
Before JORDAN, NEWSOM, and BLACK, Circuit Judges.
PER CURIAM:
Wilis Santiago Rivera appeals his conviction for conspiracy
to possess with intent to distribute 400 grams or more of fentanyl.
First, Santiago Rivera asserts the district court violated his Sixth
Amendment Confrontation Clause rights by allowing the Govern-
ment to introduce transcripts of translated telephone calls when
the original translator was not offered as a witness and was not sub-
ject to cross-examination. Santiago Rivera also asserts the district
court abused its discretion in admitting evidence of a drug transac-
tion that occurred two and half months before he was allegedly in-
volved in the drug conspiracy. After review, we affirm.
I. DISCUSSION
A. Confrontation Clause
Under the Confrontation Clause, “the accused shall enjoy
the right . . . to be confronted with the witnesses against him.” U.S.
Const. amend. VI. In Crawford v. Washington, the Supreme Court
explained the Confrontation Clause’s “primary object” is “testimo-
nial hearsay.”
541 U.S. 36, 53 (2004). If hearsay is “testimonial,”
the Confrontation Clause forbids its introduction at trial, unless:
(1) the declarant is unavailable, and (2) the defendant had a prior
opportunity to cross-examine the declarant.
Id. at 53-54. Testimo-
nial statements include statements that are the functional equiva-
lent of in-court testimony, such as affidavits, depositions, prior
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21-13835 Opinion of the Court 3
testimony, and statements made under circumstances which
would lead an objective witness to reasonably believe the state-
ment would be available for use at a later trial.
Id. at 51-52. We
clarified the Confrontation Clause prohibits only testimonial state-
ments that constitute impermissible hearsay, because the Clause
does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted. United States v.
Jiminez,
564 F.3d 1280, 1286-87 (11th Cir. 2009) (citing Crawford,
541 U.S. at 59 n. 9).
In a case with a translated wiretap transcript, we held
the Confrontation Clause is not violated when an individual who
independently reviewed the underlying recordings and tran-
scripts for accuracy is subject to cross-examination. United States
v. Curbelo,
726 F.3d 1260, 1275-76 (11th Cir. 2013) (explaining that
the Confrontation Clause “only insists that testimony be subject to
cross-examination”). The Confrontation Clause does not require
that “anyone whose testimony may be relevant in establishing the
chain of custody . . . must appear in person as part of the prosecu-
tion’s case.” Melendez-Diaz v. Massachusetts,
557 U.S. 305, 311 n.1
(2009).
Plain error review applies to Rivera’s Confrontation Clause
claim as he objected to the translated transcripts only on hearsay
and authenticity grounds. See United States v. Arbolaez,
450 F.3d
1283, 1291 & n.8 (11th Cir. 2006) (reviewing for plain error where
a defendant did not lodge a timely Confrontation Clause objection
and explaining a hearsay objection to testimony at trial, standing
alone, does not preserve a constitutional challenge under the
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4 Opinion of the Court 21-13835
Confrontation Clause for appeal). We note Santiago Rivera had
access to the transcripts well over a year before trial began. Despite
having the transcripts since the first discovery production, Santiago
Rivera failed to produce any alternative transcripts or point to any
errors in the transcripts. Santiago Rivera cannot show a Confron-
tation Clause error existed, plain or otherwise, because (1) the tran-
scripts did not constitute testimonial hearsay, and (2) the Govern-
ment offered witnesses who testified as to the transcript’s accuracy
based on an independent review of the telephone calls and tran-
scripts.
First, Santiago Rivera’s assertion the written transcripts con-
stituted inadmissible hearsay as translations of the interpreter has
been rejected by this Court. See United States v. Alvarez,
755 F.2d
830, 859-60 (11th Cir. 1985) (holding translations of a defend-
ant’s statements do not constitute impermissible hearsay, because
the interpreter acts as the defendant’s agent, where the interpreter
had sufficient capacity and no motive to mislead). Neither the
statements of Santiago Rivera nor his co-conspirators in further-
ance of the conspiracy would be considered hearsay under the Fed-
eral Rules of Evidence. See Fed. R. Evid. 801(d)(2)(A), (E). Noth-
ing suggests the translator did not have sufficient capacity to inter-
pret the telephone calls or that the translator had any motive to
mislead the agents. See Alvarez,
755 F.2d at 859-60.
Second, although the Government did not proffer its origi-
nal translator as a witness, the record shows it offered Special Agent
Hayley Hovhanessian, who testified as to the process. She testified
that monitors and linguists were located in a secured, limited-
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21-13835 Opinion of the Court 5
access room and listened to the calls, read the texts, and transcribed
the wires if they were in Spanish. Special Agent Santos Miranda
testified he had listened to the calls and reviewed the transcripts,
and the English translations were substantially accurate. Further,
Juan Ramos admitted to being a party on the recordings and testi-
fied as to the transcripts’ accuracy. The Confrontation Clause
“only insists that testimony be subject to cross-examination,” and
Ramos and Special Agents Hovhanessian and Miranda were all
cross-examined; thus, the Confrontation Clause was not violated.
See Curbelo, 726 F.3d at 1275; see also Melendez-Diaz,
557 U.S. at
311 n.1.
The district court did not err, plainly or otherwise, by allow-
ing the Government to introduce the translated transcripts without
offering the original translator as a witness. 1
1 Santiago Rivera’s reliance on United States v. Charles,
722 F.3d 1319 (11th
Cir. 2013), and Bullcoming v. New Mexico,
564 U.S. 647 (2011), is misplaced.
As Santiago Rivera concedes, in Charles, the witness testified as to an inter-
preter’s statements. See Charles, 722 F.3d at 1323-24. This is distinguishable
from Miranda offering testimony as to the transcript’s accuracy based on his
independent review, rather than statements by the original translator. In Bull-
coming, the government sought to introduce a forensic laboratory report con-
taining a testimonial certification through the in-court testimony of an analyst
who did not sign the certification or perform or observe the reported test. See
Bullcoming, 564 U.S. at 657.
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6 Opinion of the Court 21-13835
B. Evidence of Drug Transaction
Rule 401 of the Federal Rules of Evidence provides that evi-
dence is relevant if (1) it has any tendency to make a material fact
more or less probable than it would be without the evidence and
(2) the fact is of consequence in determining the action. Fed. R.
Evid. 401. Relevant evidence is generally admissible, whereas ir-
relevant evidence is never admissible. See Fed. R. Evid. 402.
The district court did not abuse its discretion in concluding
the evidence from the November 2018 drug transaction was rele-
vant. See United States v. Dothard,
666 F.2d 498, 501 (11th Cir.
1982) (stating a trial court has broad discretion in determining the
admissibility of evidence, and its determination will not be dis-
turbed absent a clear abuse of discretion). Santiago Rivera was not
observed at the scene in November 2018. However, the photo-
graph of the recovered drugs and related testimony showing the
drugs involved in Santiago Rivera’s drug transaction was from the
same shipment tested by the DEA and found to be fentanyl made
it more probable the substance he conspired to possess was fenta-
nyl. Fed. R. Evid. 401. Under these circumstances, and considering
the district court’s broad discretion in determining the admissibility
of evidence, the district court did not abuse its discretion by admit-
ting the November 2018 drug transaction evidence. See
id.
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21-13835 Opinion of the Court 7
II. CONCLUSION
The district court did not err in allowing the Government to
introduce the translated transcripts or abuse its discretion in admit-
ting the drug transaction evidence.
AFFIRMED.
