United States v. Valadez , 186 F. App'x 508 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2006
Charles R. Fulbruge III
Clerk
No. 05-50746
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MANUEL VALADEZ,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:03-CR-354-1
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Manuel Valadez appeals his conviction following a jury
trial for conspiracy to possess with the intent to distribute
more than five kilograms of cocaine, in violation of 21 U.S.C.
§ 846, and for possession with the intent to distribute more than
500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). He
argues (1) that the district court erred in denying his motion to
suppress, (2) that the district court erred in overruling his
*
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this opinion should not be published and is not precedent except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. 05-50746
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objections to taped conversations, and (3) that the evidence was
insufficient.
Valadez moved to suppress evidence from the underlying
investigation, asserting that the Government’s failure to
disclose the identity of the confidential informant (CI) violated
his Sixth Amendment confrontation rights. Valadez relies on
Crawford v. Washington, 541 U.S. 36 (2004), in support of his
argument. His reliance is misplaced because he has not
identified any specific hearsay statements by the CI which were
introduced by the Government at trial allegedly violating his
confrontation rights. See id. Additionally, Valadez has no
right to complain about the introduction of any statements which
he solicited on cross-examination. See id. at 68. Further,
Valadez fails to show that the CI was anything more than a
tipster, the identity of whom need not be disclosed. See United
States v. Cooper, 949 F.2d 737, 749 (5th Cir. 1991).
Valadez next contends that the district court erred in
overruling his objections to the taped conversations between
himself and Agent Garza on July 23, 2003, and the related English
translations. We review evidentiary rulings for abuse of
discretion. United States v. Gutierrez-Farias, 294 F.3d 657, 661
(5th Cir. 2002). Valadez has not shown an abuse of discretion by
the district court in admitting the tapes or the English
translations. The tape recording was properly admitted as the
best evidence of the conversations that occurred between Garza
No. 05-50746
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and Valadez on July 23, and the transcript of that tape was
properly admitted for jurors to use as an aid to understand the
tape. Valadez’s argument that Spanish-speaking jurors had an
undue influence over non-Spanish speakers is unpersuasive because
Valadez has not shown how many jurors did or did not speak
Spanish. Moreover, because the English translation was admitted
into evidence, the jurors had it available when each tape was
played, and the jury had available both the tape and the English
translation in the jury room during deliberations.
Valadez’s objection that the English translations of the
tapes were not properly authenticated is raised for the first
time on appeal and is, therefore, reviewed for plain error. See
United States v. Berry, 977 F.2d 915, 918 (5th Cir. 1992).
Valadez has not shown that there were in fact any inaccuracies in
the English translation provided to aid the jurors. See United
States v. Rizk, 842 F.2d 111, 112 (5th Cir. 1988) (stating that
the defendant bears the burden of showing an inaccuracy by
providing his own translation). Moreover, the Government,
through Agent Garza’s testimony, established how the recordings
were initiated, how the equipment was operated, the accuracy of
the taped conversations, and that Valadez was the person with
whom Garza was speaking on the tape. See United States v. Brown,
692 F.2d 345, 350 & n.5 (5th Cir. 1982) (stating that this court
has rejected a formalistic standard for the admissibility of
tapes and finding that the government met its burden by
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establishing, inter alia, how the equipment operated and how the
wire-tap was initiated). Valadez’s objection does not survive
plain error review.
Valadez’s argument that the evidence was insufficient to
support his convictions is also unavailing. Because Valadez
moved for a judgment of acquittal at the close of the evidence,
we review for “whether, considering all the evidence in the light
most favorable to the verdict, a reasonable trier of fact could
have found that the evidence established guilt beyond a
reasonable doubt.” United States v. Mendoza, 226 F.3d 340, 343
(5th Cir. 2000). The evidence established that Valadez initiated
contact with DEA Agent Garza, acting undercover, after a CI
indicated that Garza would be interested in purchasing cocaine.
Valadez negotiated a first sale of several kilograms of cocaine
and sent associates to meet with Garza to finalize the terms,
though the sale ultimately fell through. A month later, Valadez
again contacted Garza, negotiating the sale of 10 kilograms of
cocaine and met with him the following day to finalize the terms
of the sale. Garza taped three conversations with Valadez on the
day the drug transaction was to take place in which the terms and
location of the transaction were finalized. After Garza arrived
at the agreed-upon meeting place, Valadez met him and told him
that “the stuff was in the car,” ready to be inspected. Garza
examined the drugs in the vehicle in which Valadez had arrived,
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and the substance shown to Garza later tested positive as more
than a kilogram of cocaine.
There was sufficient direct evidence to establish Valadez’s
guilty knowledge beyond a reasonable doubt. See United States v.
Mendoza, 226 F.3d 340, 343 (5th Cir. 2000). To the extent that
Valadez relies on his own trial testimony denying knowledge of
the drugs, his argument is an attempt to overturn a credibility
determination made by the jury, which this court will not do.
See United States v. Garcia, 995 F.2d 556, 561 (5th Cir. 1993).
Valadez has not demonstrated any error in the district
court’s judgment. Accordingly, the conviction is AFFIRMED.