United States v. Alvelais ( 2000 )

No. 99-10370
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10370
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGELIO ALVELAIS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CR-221-1-X
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May 3, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Rogelio Alvelais appeals after being convicted of conspiring
to possess with intent to distribute and to distribute cocaine,
unlawfully using a communication facility, and aiding and
abetting the possession of cocaine with intent to distribute.
The Government has filed a motion to supplement the record, which
is GRANTED.
On appeal, Alvelais first challenges the district court’s
decision to admit into evidence Government-proferred transcripts
which translated recorded conversations from Spanish into
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-10370
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English. He maintains that the Government failed to authenticate
the transcripts because its translator failed to certify the
accuracy of the transcripts. He further maintains that the
admission of the transcripts into evidence constituted an abuse
of discretion, particularly when there was an official court
interpreter present who could have translated the conversations.
Alvelais’ argument is unavailing. Jesus Gallo, a special agent
with the Drug Enforcement Administration who was a party to each
of the recorded conversations and whose native language is
Spanish, testified that he had reviewed the English transcripts
while listening to the tapes and that the transcripts were
accurate translations of the tapes. That testimony was
sufficient to authenticate the transcripts. See United States v.
Sutherland, 656 F.2d 1181, 1201 (5th Cir. 1981); United States v.
Rochan, 563 F.2d 1246, 1251-52 (5th Cir. 1977). Accordingly, the
district court did not abuse its discretion when it admitted the
transcripts into evidence. See United States v. Thompson, 130
F.3d 676, 683 (5th Cir. 1997).
Alvelais next contends that the district court made comments
at trial which violated his right to due process. He points to
three examples in the record, two of which he concedes the
district court made outside the presence of the jury. The
comments referenced by Alvelais, however, do not “amount to an
intervention that could have led the jury to a predisposition of
guilt by improperly confusing the function of the judge and
prosecutor.” See id. at 685 (internal quotations and citations
omitted). Accordingly, Alvelais has not shown any error, plain
No. 99-10370
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or otherwise, with respect to this issue. See id. at 685 n.14;
United States v. Iredia, 866 F.2d 114, 119 (5th Cir. 1989);
United States v. Davis, 752 F.2d 963, 974-75 (5th Cir. 1985).
Alvelais also contends that his prosecution violated the
Speedy Trial Act. This contention is without merit given the
numerous pretrial motions filed by his codefendants. See
18 U.S.C. § 3161(c)(1), (h)(1)(F); United States v. Franklin, 148
F.3d 451, 455 (5th Cir. 1998).
Finally, Alvelais maintains that there is insufficient
evidence to support his conviction for aiding and abetting the
possession of cocaine with intent to distribute.1 As the
Government points out, review is for plain error only because
Alvelais failed to renew his motion for judgment of acquittal at
the close of all evidence. See United States v. McCarty, 36 F.3d
1349, 1358 (5th Cir. 1994). Because the record contains evidence
pointing to Alvelais’ guilt for aiding and abetting the
possession of cocaine with intent to distribute and because that
evidence is not “so tenuous that a conviction would be shocking,”
no miscarriage of justice has occurred. See id. (internal
quotations and citation omitted); United States v. Crooks,
83 F.3d 103, 106 (5th Cir. 1996). Accordingly, the district
court’s judgment is AFFIRMED.
MOTION TO SUPPLEMENT THE RECORD GRANTED; JUDGMENT AFFIRMED.
1
Alvelais does not challenge his conviction under 21
U.S.C. § 846 for conspiracy or his convictions under 21 U.S.C.
§ 843(b) for unlawful use of a communication facility.