United States v. Chavez

976 F.3d 1178

UNITED STATES of America, Plaintiff - Appellee,

v.Randolfo Librado CHAVEZ, Jr., Defendant - Appellant.

No. 17-8096

United States Court of Appeals, Tenth Circuit.

FILED September 30, 2020

Neil D. Van Dalsem, Assistant Federal Public Defender (Julia L. O'Connell, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Northern & Eastern Districts of Oklahoma, Tulsa, Oklahoma, for Defendant-Appellant.

Timothy Forwood, Assistant United States Attorney (Mark A. Klaassen, United States Attorney, with him on the brief), Office of the United States Attorney, Cheyenne, Wyoming, for Plaintiff-Appellee.

Before HARTZ, SEYMOUR, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Defendant-Appellant Randolfo Librado Chavez, Jr., was convicted, after a jury trial in the federal district court in Wyoming, of two counts of distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). His appeal from those convictions centers on the district court's admission into evidence of three transcripts, which purportedly were of audio recordings of incriminating conversations that he had had in Spanish and in English. The district court did not admit into evidence the audio recordings themselves or play the recordings for the jury. Furthermore, the district court instructed the jury that they could not question the accuracy of the English-language translations in the transcripts.

On appeal, Mr. Chavez challenges both the district court's admission of the transcripts and the jury instructions relating to them. He argues that the district court (1) violated the best-evidence rule by admitting the transcripts into evidence without admitting the recordings themselves, and (2) committed plain error by instructing the jury to accept the accuracy of the translations in the transcripts.

As to Mr. Chavez's first contention, we conclude that the district court's admission of the transcripts, without also admitting the recordings they purported to transcribe, violated the best-evidence rule and constitutes reversible error. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand the case to the district court with instructions to vacate Mr. Chavez's convictions and grant him a new trial. In light of this disposition, we do not reach the merits of Mr. Chavez's jury-instruction challenge.

I

We start by surveying (A) the events on which the audio recordings and transcripts are predicated, (B) the contents of the recordings and the transcripts, and (C) the district court's admission of the transcripts at trial.

A

The relevant events trace back to July 2016, when Bryan Salas agreed to serve the Wyoming Division of Criminal Investigation ("WDCI") as a confidential informant in exchange for the removal of a misdemeanor theft charge from his record. Mr. Salas advised WDCI Special Agent Jason Ruby that he knew of people in the Gillette, Wyoming, area involved in the sale of methamphetamine and that he could arrange controlled purchases of the drug from them. To that end, working with several WDCI agents, Mr. Salas arranged to purchase four ounces of methamphetamine from a former co-worker named McKleen Miranda¹ on July 22. The agents gave Mr. Salas $4,000 to buy the four ounces of methamphetamine, and they outfitted him with a wire that would record audio and transmit it live to the agents.

On July 22, the day of the controlled purchase, the wire recorded a call that Mr. Salas allegedly received from Mr. Miranda. Because the conversation was largely in Spanish, the agents did not understand what they were saying, so Mr. Salas informed them later about the conversation's contents. See R., Vol. III, at 102, 111–12 (Tr. Jessie Lile's Test., dated Oct. 3, 2017). Mr. Salas told the agents that Mr. Miranda had informed him that "they [i.e., Mr. Miranda and one or more unidentified individual(s) ] had the four ounces of methamphetamine" that he had requested, and that "they wanted to meet at Walmart in Gillette." Id. at 102. At the last minute, the location of the drug purchase changed from Walmart to the parking lot of a nearby Old Chicago pizza restaurant.

The trial testimony presented slightly conflicting stories about precisely what took place in the Old Chicago parking lot. Mr. Salas testified that he was the first to arrive and that a white four-door car occupied by Mr. Miranda, Mr. Chavez, and a person he did not know eventually pulled up next to his car. He recounted that one of the white car's windows rolled down and that Mr. Chavez then handed him the methamphetamine in exchange for cash. Mr. Miranda, on the other hand, testified that he, Mr. Chavez, and Mr. Miranda's brother-in-law, Carlos Dominguez, were the first to arrive in the white four-door car and that Mr. Salas subsequently showed up and pulled up next to their car. As for the drug handoff, Mr. Miranda testified that Mr. Chavez initially rolled down a window in their white car, but when Mr. Salas's car window failed to open, Mr. Salas opened his car door instead and then exchanged Mr. Chavez's methamphetamine for cash.

None of the law enforcement officers who were at the scene were able to confirm either specific account. At most, one of them testified that he "could see that there were definitely two occupants in the white car," id. at 183 (Tr. Eric Vos's Test., dated Oct. 3, 2017), while another testified that he could hear "other people talking" over the live wire transmission, id. at 106. But that was the full extent of what they could ascertain: none of them could see who was inside the white car, much less identify Mr. Chavez as one of its occupants. The testimony is consistent, however, in conveying that the entire interaction between occupants of the two cars was brief, lasting somewhere between approximately "15 or 30 seconds" and one minute. Id. at 142 (Tr. Bryan Salas's Test., dated Oct. 3, 2017); see id. at 106 (officer testifying that the meeting lasted "right around the one-minute mark").

After the cars parted, Mr. Salas and the agents returned to the WDCI office, where the agents collected from Mr. Salas a bag containing methamphetamine. The methamphetamine weighed 3.55 ounces, falling short of the four ounces that Mr. Salas had been instructed to purchase. Accordingly, at the agents’ request, Mr. Salas contacted Mr. Miranda about the methamphetamine shortage. Then, pertaining to a separate matter, Special Agent Ruby asked Mr. Salas also to contact Mr. Miranda to inquire into "another individual that [Special Agent Ruby] was trying to activate a case on." Id. at 231–32 (Tr. Jason Ruby's Test., dated Oct. 3, 2017).

Three days later, on July 25, Mr. Salas visited Mr. Miranda's home. Special Agent Ruby indicated that the purpose of the visit was for Mr. Salas to inquire into the aforementioned person of interest. But while Mr. Salas was at Mr. Miranda's home, Mr. Salas acquired—without Special Agent Ruby's authorization—the approximately half-ounce of methamphetamine that had been missing from the July 22 controlled purchase. Shortly after leaving Mr. Miranda's home with the approximately half-ounce of methamphetamine, Mr. Salas contacted Special Agent Ruby and told him that he had just acquired from Mr. Miranda "the methamphetamine that [had been] shorted from the deal on the 22nd [of July]." Id. at 231.

Mr. Salas then met Special Agent Ruby at the WDCI office at the special agent's request. Special Agent Ruby took from Mr. Salas what he had obtained from Mr. Miranda, which Special Agent Ruby described as "a potato chip bag" containing "a paper towel or napkin-type substance," inside of which "was a plastic bag that contained a crystalline substance similar to methamphetamine." Id. at 232. Special Agent Ruby "admonish[ed]" Mr. Salas for acquiring the remaining methampetamine from Mr. Miranda without the participation of WDCI agents. Id. at 234–35. Two days later, Mr. Salas was arrested for driving under the influence ("DUI").

Despite Mr. Salas's unauthorized acquisition of the remaining methamphetamine as well as his DUI arrest, WDCI agents continued to work with him. Sometime shortly after July 22, Special Agent Ruby contacted Mr. Salas and asked him to set up another controlled purchase of methamphetamine. Mr. Salas told Special Agent Ruby that Mr. Chavez had already contacted him about whether he needed more methamphetamine, and Special Agent Ruby asked Mr. Salas to arrange to have Mr. Chavez sell him four more ounces of methamphetamine. Mr. Salas and Mr. Chavez allegedly arranged for this second purchase to take place on August 3 in the Walmart parking lot.

On August 3, WDCI agents again provided Mr. Salas with cash and outfitted him with a wire. At Special Agent Ruby's request, Mr. Salas called Mr. Chavez to advise him that he was heading to Walmart. Mr. Salas arrived first at Walmart, where he waited inside for Mr. Chavez. Eventually, a white car pulled up to the store, and Mr. Salas got in.

Mr. Salas testified that there were two people in the car: Mr. Chavez and Mr. Dominguez. According to Mr. Salas, a conversation took place in the car between Mr. Chavez and himself, during which Mr. Chavez said that he did not have all four ounces of methamphetamine that Mr. Salas had requested. Mr. Chavez also allegedly said, at some point during this conversation, "I am the boss. I can get you anything that you want." Id. at 152. Mr. Salas further testified that Mr. Chavez handed him the lesser amount of methamphetamine he had been able to procure, and that Mr. Salas handed Mr. Chavez a corresponding amount of cash in exchange.

Agents at the scene of the August 3 transaction presented a less definitive picture of what transpired, testifying that they were unable to ascertain exactly how many people other than Mr. Salas were in the white car, nor could they identify precisely who those other people were. In terms of what actually happened in the car, agents testified that they listened in on an approximately...