United States v. Celis

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2009 Decided June 18, 2010

No. 07-3075

UNITED STATES OF AMERICA,

APPELLEE

v.

JOSE ANTONIO CELIS, ALSO KNOWN AS CALVO,

APPELLANT

Consolidated with Nos. 07-3076 and 07-3078

Appeals from the United States District Court

for the District of Columbia

(No. 03cr00554-03)

Carmen D. Hernandez, appointed by the court, argued the

cause and filed the briefs for appellant Anayibe R. Valderama.

Elita C. Amato, appointed by the court, argued the cause

and filed the briefs for appellant Jose A. Celis.

Manuel J. Retureta, appointed by the court, argued the

cause and filed the briefs for appellant Juan D. Giraldo.

2

Mary E. Mogavero, Trial Attorney, U.S. Department of

Justice, argued the cause for appellee. With her on the brief

were Lanny Breuer, Assistant Attorney General, Teresa A.

Wallbaum, Appellate Counsel, and Tritia Yuen, Trial Attorney.

Roy W. McLeese III, Assistant U.S. Attorney, entered an

appearance.

Before: ROGERS and GRIFFITH, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

PER CURIAM: Appellants Jose Antonio Celis, Juan Diego

Giraldo, and Anayibe Rojas Valderama were convicted by a jury

of conspiring to import cocaine and to manufacture and

distribute cocaine for import into the United States, in violation

of 21 U.S.C. §§ 952, 959, 960, and 963. The events underlying

these convictions occurred principally in Colombia, South

America. Because appellants’ actions were tied to a terrorizing

drug trafficking organization in Colombia, the district court

issued a protective order to ensure the safety of certain

government witnesses. Appellants contend that the protective

order and other rulings by the district court require reversal of

their convictions.1 Specifically, appellants contend that the

1

Appellants join each others’ briefs. See FED. R. APP. P.

28(i). Valderama and Celis do so without qualification; Giraldo does

so “except those contrary to his interests on appeal,” Appellant

Giraldo Br. 27. Celis purports to join the arguments in Valderama’s

and Giraldo’s briefs but provides no explanation of how the

incorporated contentions affect him individually. In view of our

disposition we need not decide whether Celis thereby waived these

contentions. Cf. United States v. Avilés-Colon, 536 F.3d 1, 27 n.22

(1st Cir. 2008); see also N.Y. Rehabilitation Care Mgmt. v. NLRB, 506

F.3d 1070, 1076 (D.C. Cir. 2007).

3

protective order allowing government witnesses to testify under

pseudonyms violated their confrontation and effective counsel

rights under the Sixth Amendment. They further contend that

their ability to prepare for cross-examination was impeded by

the government’s belated production of discovery materials it

was obligated to disclose. Additionally appellants contend they

were denied a fair trial because the district court rejected their

objections to discovery violations by the government, denied

requests for a continuance, and failed to require translation of

discovery materials from Spanish into English and from English

into Spanish. Finally, they contend the district court erred by

denying a motion for severance, admitting audio recordings and

statements in a video recording, finding no prejudicial variance

between the indictment and evidence presented at trial, ruling

there was sufficient evidence to support the verdict, and denying

a motion for a new trial.

We hold that in issuing and managing the protective order

the district court accommodated the government’s law

enforcement interests in a manner that did not impermissibly

intrude upon appellants’ Sixth Amendment rights and did not

result in prejudice that would require reversal of their

convictions. We further hold that appellants’ procedural and

evidentiary challenges are unpersuasive. Accordingly, we

affirm the judgments of conviction.

I.

The Fuerzas Armadas Revolucionaras de Colombia

(“FARC”) is the most significant drug trafficking organization

in Colombia. An area in Colombia known as the Caguan region

is a major source of the FARC’s cocaine production. The 14th

Front, a division of the FARC, controls the region, forcing local

peasants to sell their coca crop exclusively to the organization.

4

At the time of the events in this case, the 14th Front was

commanded by Fabian Ramirez. Under orders from Ramirez,

Anayibe Rojas Valderama served as the leader and chief

financial officer for the 14th Front’s drug trafficking operations

in the Caguan region. In her position, Valderama was

responsible for ensuring that peasants in the Caguan region sold

cocaine base only to the FARC. She made frequent trips

throughout the region to exchange pesos for cocaine base. After

the cocaine base was acquired, Valderama arranged for it to be

delivered to different processing facilities where it was

converted into cocaine powder. She often traveled to these

laboratories to observe operations. Once the cocaine was in

powder form, buyers would fly in to small airstrips near the

laboratories to take possession of the cocaine with Valderama

overseeing the exchange.

In 2001 Jose Antonio Celis, a drug trafficker who had done

business with the FARC ten years prior, sought to make contact

with the FARC with hopes of another partnership. Celis

contacted Rocio Alvarez, an associate of Valderama’s who

would later become a DEA cooperating informant, and told her

that he wished to obtain cocaine from the FARC. Celis

informed Alvarez that he still had drug contacts throughout the

world. He proposed a scheme in which he would ship FARC

cocaine via boat to Panama and then on to the United States in

containers. Celis asked Alvarez to deliver his proposal to her

FARC contacts.

Alvarez contacted Juan Diego Giraldo, a drug trafficker

with ties to Fabian Ramirez, and communicated the Celis

proposal to him. Giraldo then arranged a meeting between

Alvarez and Fabian Ramirez, at which Alvarez gave Ramirez a

letter outlining Celis’s plan. Giraldo later contacted Alvarez and

asked her to tell Celis that he should travel to San Vicente del

Carguan to meet with Ramirez. While the parties did not reach

5

an agreement at this initial meeting, Giraldo arranged a second

meeting six or seven months later in which an agreement was

reached. Under the agreement, Celis would transport 1,400

kilograms of cocaine to the United States. The cocaine was to

come from the Caguan region where Valderama led the FARC’s

drug operation. Mr. Celis would not purchase the entire load;

other investors included Fabian Ramirez and Valderama.

The plan proved only partially successful. Celis did receive

cocaine from the FARC and sold some of it in Miami, Florida.

But a portion of the shipment was lost in Panama where, as

Celis later recounted to Alvarez, there were “some problems”

and “even deaths.” Apparently some of the drugs were seized

by law enforcement. When Celis did not promptly repay the

FARC investors due to the loss, Valderama complained to

Alvarez that if he did not pay his debts, he would be killed.

After hearing this news, Alvarez arranged a meeting with

Giraldo and Celis. At the meeting Celis gave Giraldo

newspaper accounts from Panama showing that drugs had been

seized by the law and asked Giraldo to show the articles to

Ramirez and Valderama. Celis later told Alvarez that he was

trying to pay Ramirez and Valderama back through new

shipments of drugs to the United States.

Later in mid-2003, Celis invited Rodrigo Jardinero (a/k/a

“Lechuga”), a Colombian drug trafficker with whom Celis had

a longstanding business relationship, to a meeting in Panama.

Among others, Valderama, Celis, and Giraldo were present at

this meeting. Valderama led the discussion and told Celis that

“he owed us a lot of money.” Though Jardinero was initially

reluctant to work with Valderama, he agreed to assist in

transporting some cocaine to Charleston, South Carolina and

Miami in order to help Celis. Celis eventually sent Jardinero

two different loads of cocaine; Jardinero sent 40 kilos on to

Charleston, but they were not successfully received by his

6

contacts there. Jardinero did successfully send 41 kilos to

Miami.

Valderama also worked with traffickers other than Celis and

Giraldo to sell FARC cocaine. A drug trafficker named Gordo

Andres brokered a deal with Valderama in which she would

provide FARC cocaine to a trafficker known as “El Burro,” who

would arrange for the cocaine to be sent to a laboratory near

Venezuela and then on to the United States. Pursuant to that

agreement, Andres and El Burro both made trips to meet

Valderama in the Caguan region and purchased a total of 1,600

kilograms worth of cocaine. Valderama counted their money

and authorized the release of the cocaine. Later, after El Burro

and Andres had a falling out, El Burro turned to Alvarez to

broker a deal for him to purchase additional cocaine from the

FARC. Alvarez, with the assistance of Giraldo, put El Burro in

contact with Valderama. This time El Burro sent a pilot to pick

up 420 kilograms of cocaine from Valderama.

In addition to the schemes described above, the appellants

in this case formed a number of other plans to traffic cocaine out

of the Caguan region that never came to fruition. For example,

Valderama and Ramirez hatched a plan in November of 2002 in

which they would provide Gordo Andres with cocaine for him

to sell to enemies of the FARC, only to later steal it back so that

Giraldo could ship it to the United States. Later, in May 2003,

Giraldo and Celis asked Andres to invest in a plan to ship

cocaine to the United States, but that deal fell through when

Andres refused to participate. And while Andres initially agreed

to assist Celis in another deal to purchase 3,000 kilograms of

14th Front cocaine to ship to a drug boss in Mexico, that deal

also fell through when Andres went missing.

Valderama’s role in distributing FARC cocaine ultimately

came to an end on February 10, 2004, when Colombian army

7

soldiers raided her farm and captured her. Various items were

seized including six kilograms of cocaine, thirteen weapons,

money, military uniforms, a satellite telephone, a video camera,

and several documents one of which included a phone number

and the handwritten name “Flaco,” which was Giraldo’s alias.

Valderama, Ramirez, Celis, and Giraldo were indicted for

conspiracy to manufacture and distribute five kilograms or more

of cocaine, knowing or intending that it be imported into the

United States in violation of 21 U.S.C. §§ 952, 959, 960, and

963. The district court denied Giraldo’s pre-trial motions for

severance and Valderama, Giraldo, and Celis were tried

together.2 At trial, the government introduced testimony from

an expert knowledgeable with the operations of the FARC and

from a number of witnesses who were associates of the

appellants. The government also introduced audio and video

recordings capturing each of the appellants discussing drug

trafficking.

The jury convicted all three appellants. Valderama and

Giraldo were sentenced to 200 months’ incarceration; Celis was

sentenced to 175 months’ incarceration. The appellants have

appealed, each presenting grounds for reversal.

II.

Protective Order; Brady. Valderama and Giraldo contend

the government’s use of pseudonyms for its witnesses and

limitations on disclosure of the witnesses’ true identities

prevented adequate investigation of the witnesses and violated

2

While Ramirez was indicted, he was never apprehended and

remains a fugitive.

8

appellants’ confrontation rights under the Sixth Amendment.3

Valderama also contends that her right to the effective assistance

of counsel under the Sixth Amendment was violated. Further,

Valderama challenges the timeliness of the government’s

disclosures of information and evidence pursuant to Brady v.

Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405

U.S. 150 (1972), maintaining that the delayed disclosures

impeded counsel’s ability to investigate and prejudiced

counsel’s ability to prepare for cross-examination of protected

government witnesses.

Disclosure of government witness lists and of exculpatory

or impeachment information and evidence implicates the due

process considerations of the Fifth Amendment.4 See United

States v. Ruiz, 536 U.S. 622, 631–32 (2002). Determining

whether to require such disclosure involves considering “the

nature of the private interest at stake . . . the value of the

additional safeguard, and . . . the adverse impact of the

requirement upon the Government’s interests.” Id. at 631.

Because the timing of such disclosure may affect a defendant’s

ability to confront witnesses at trial, these disclosure

requirements also implicate the confrontation considerations of

the Sixth Amendment, as, for example, where the credibility of

a key incognito prosecution witness is in issue. See, e.g., Smith

v. Illinois, 390 U.S. 129, 131–32 (1968). These considerations

can burden both the interests of the government in enforcing the

3

The Sixth Amendment provides, in relevant part: “In all

criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him . . . and to have the

[a]ssistance of [c]ounsel for his defense.” U.S. CONST. amend. VI.

4

The Fifth Amendment provides, in relevant part: “No

person shall . . . be deprived of life, liberty, or property, without due

process of law.” U.S. CONST. amend. V.

9

law and the ability of a defendant to prepare a defense.

Valderama’s and Giraldo’s Sixth Amendment challenge to the

use of pseudonyms requires this court to determine whether the

district court’s restriction on defense access to the true identities

of protected witnesses until six days before the witness testified

at trial impermissibly impeded appellants’ ability to cross-

examine the protected witnesses in violation of the Sixth

Amendment. We note that in support appellants cited at least

one Fifth Amendment due process case that reflects some

overlap between the concepts of Fifth Amendment due process

and the right of confrontation under the Sixth Amendment.

Thus, a related question this court must address is whether the

government’s manner of disclosure pursuant to Brady and

Giglio as to the protected witnesses, by providing redacted

materials and information to the defense on the first day of trial

and unredacted materials several days before each witness

testified, prejudiced appellants’ ability to prepare for cross-

examination.

A.

The district court issued the protective order under seal on

the first day of jury selection, January 8, 2007. Two months

earlier the government had filed under seal a motion in limine

seeking a protective order barring the release of the true

identities of witnesses from Colombia and allowing these

witnesses to testify under pseudonyms. The motion set out in

vivid detail the reasons underlying the request. The district

court granted the motion for a protective order but not exactly as

the government had requested. Instead of barring the defense

from ever learning the true identifies of the protected witnesses,

the district court issued a protective order including provisions

under which the defense could obtain the true identities of these

witnesses. Referencing concerns about witness safety, the

protective order allowed the witnesses from Colombia to testify

under pseudonyms but required the government to disclose the

10

witnesses’ true identities to defense counsel. The protective

order also allowed each defense counsel to share the protected

witnesses’ true identifies with the represented defendant and one

member of the defense team located in the United States. The

true identities, however, could not be shared with anyone

located in Colombia without the district court’s prior

permission.

At the motions hearing on January 8, 2007, the district court

reviewed the flexibility of the protective order. For instance,

Valderama’s counsel expressed concern that the protected

witnesses’ identities could never be released to individuals

located in Colombia. The district court responded by

emphasizing that the identities could not be released only

“without leave of court.” The district court explained that

defense counsel would not need to “file formal written motions”

for permission to disclose protected witness identities in

Colombia, but could “come up to the side-bar [in the courtroom]

and talk about it, and we’ll deal with them one at a time if we

need to.” Mot. Hr’g Tr. 23, Jan. 8, 2007. The government, in

turn, proposed providing to defense counsel the true identity of

each protected witness seven days before the witness testified at

trial. Although at this hearing Valderama’s counsel instead

sought the true identities of two witnesses immediately and

Giraldo’s counsel expressed concern that the trial schedule

might not reflect the volume of new information the government

had begun providing to the defense, appellants do not suggest

that at this hearing they raised other objections to these time

constraints.

The government began presenting its case in chief on

January 10, 2007, with FARC expert Lieutenant Colonel

Camilio Santiago of the Colombian military as its first witness,

and the jury heard closing arguments on February 7, 2007. The

government’s witnesses included a number of Colombian

11

witnesses who testified under pseudonyms.5 One, “Juan

Valdez,” was scheduled to testify on January 30, 2007. On

January 25, the district court granted Valderama’s counsel

permission to speak with a Colombian official in the United

States and by telephone with a prosecutor in Colombia about

“Valdez,” and told Valderama’s counsel “to get back” to the

district court “if [defense counsel] needed more.” Trial Tr.

1420–21, Jan. 29, 2007. On January 29, the district court

granted permission for Valderama’s counsel to investigate

“Valdez” in the United States and in Colombia using his true

identity. “Valdez” began testifying on January 31. On January

29, 2007, the district court also granted Valderama’s counsel

permission to investigate protected witness “Mauricio Moreno”

in Colombia using his true identity; the district court postponed

cross-examination of “Moreno” to “give [Valderama’s counsel]

all the time [she] want[s] to do the investigation.” Trial Tr.

1263, Jan. 29, 2007.

B.

Valderama and Giraldo contend that the government’s use

of pseudonyms for its witnesses prevented proper investigation

of the witnesses and thereby violated their confrontation rights

under the Sixth Amendment. Valderama also contends her right

to the effective assistance of counsel under the Sixth

5

According to Giraldo, five of the protected witnesses were

“so-called ‘insider’ witnesses”: “Alvarez” (the “know it all” witness),

“Moreno” (“the ‘fly on the wall’ witness, claiming to have been

present at numerous meetings and conversations in which he was not

participating”), “Valdez” (“‘the dedicated soldier’ who took advantage

of a government-sponsored leniency program to prevent

incarceration”), “Lopez” (“the ‘politically active’ witness, whose work

on behalf of the poor and down-trodden afforded him an opportunity

to be in the right place, at the right time”), and “Jardinero” (“the

‘reluctant’ witness, whose disdain for Mr. Giraldo and Ms. Valderama

was palpable”). Appellant Giraldo Br. 4–5.

12

Amendment was violated.

Although the true identities of protected witnesses who

testified under pseudonyms eventually were made known to the

defense, the protective order’s limitation on defense access to

and ultimate use of information regarding these witnesses

presents concerns similar to those where witnesses are prevented

from disclosing information on cross-examination or when

confidential informants do not testify in court. The Supreme

Court has addressed such disclosure issues on a case-by-case

basis. In Alford v. United States, 282 U.S. 687 (1931), and

Smith v. Illinois, 390 U.S. 129, the Court held, much as

Valderama and Giraldo contend, that the witnesses in those

cases should have been required to disclose their addresses, and

in Smith to disclose his true name, in order to give the defense

“the opportunity to place the witness in his proper setting” and

to test the witnesses’ credibility at trial. Smith, 390 U.S. at 132

(quoting Alford, 282 U.S. at 692); see also Smith at 133–34

(White, J., concurring). Similarly, in Roviaro v. United States,

353 U.S. 53 (1957), relied on by Valderama, the Supreme Court

held as a matter of “the fundamental requirements of fairness”

that the prosecution could not refuse to disclose the identity of

an undercover informant who was “the sole participant, other

than the accused, in the transaction charged,” because the

informant’s identity was “relevant and helpful to the defense of

an accused,” id. at 60–61, 64. The Court cautioned, however,

that “no fixed rule with respect to disclosure is justifiable.” Id.

at 62. Instead “[t]he problem is one that calls for balancing the

public interest in protecting the flow of information against the

individual’s right to prepare his defense,” and “[w]hether a

proper balance renders nondisclosure erroneous must depend on

the particular circumstances of each case, taking into

consideration the crime charged, the possible defenses, the

possible significance of the informer’s testimony, and other

relevant factors.” Id.

13

The Supreme Court held, in addressing a Brady claim, that

“[t]here is no general constitutional right to discovery in a

criminal case,” and “[i]t does not follow from the prohibition

against concealing evidence favorable to the accused that the

prosecution must reveal before trial the names of all witnesses

who will testify unfavorably.” Weatherford v. Bursey, 429 U.S.

545, 559 (1977). Prior to Weatherford, this court also had held

in United States v. Bolden, 514 F.2d 1301, 1312 (D.C. Cir.

1975), that under Brady the prosecution has no duty to disclose

its witness list prior to trial in a noncapital case, citing the

provision in 18 U.S.C. § 3432 that a person charged with a

capital offense “shall . . . be furnished with . . . a list . . . of the

witnesses to be produced on the trial for proving the

indictment,” and noting the defeat in 1975 of a proposal to

amend Federal Rule of Criminal Procedure 166 to require

disclosure of witness lists.

This court held in United States v. White, 116 F.3d 903, 918

(D.C. Cir. 1997), citing Weatherford and Criminal Rule 16, that

“[t]he constitutional right to cross examine has never been held

to encompass a right to pretrial disclosure of prosecution

witnesses.” See also United States v. Nevels, 490 F.3d 800, 803

(10th Cir. 2007); United States v. Edwards, 47 F.3d 841, 843

(7th Cir. 1995); United States v. Alessi, 638 F.2d 466, 481 (2d

Cir. 1980); 2 Charles Alan Wright & Peter J. Henning, Federal

Practice & Procedure: Criminal § 258 (4th ed. 2008); cf. United

States v. Edmonson, 659 F.2d 549, 551 (5th Cir. 1981). “[T]he

right to confrontation is a trial right, designed to prevent

improper restrictions on the types of questions that defense

counsel may ask during cross-examination,” Pennsylvania v.

6

Criminal Rule 16 provides for disclosure by the prosecution

or defense of statements, documents, reports, objects, and other items

or information in particular circumstances, as well as for regulation of

discovery by the district court. Names of witnesses are not listed as

subject to disclosure. See FED. R. CRIM. P. 16.

14

Ritchie, 480 U.S. 39, 52 (1987) (plurality opinion), and “does

not create a right to pretrial discovery,” United States v. Mejia,

448 F.3d 436, 458 (D.C. Cir. 2006). See United States v.

Wilson, — F.3d —, 2010 WL 2036304, at *8 (D.C. Cir. May 25,

2010); United States v. Tarantino, 846 F.2d 1384, 1415–16

(D.C. Cir. 1988).

Further, in White the court held that precluding pretrial

discovery of the prosecution’s witness list does not

automatically infringe a defendant’s right to present a defense,

especially where “security concerns for the witnesses plainly

militated against it.” 116 F.3d at 918. The court reasoned that

the district court’s denial of a defendant’s motion to discover the

prosecution’s witness list was within its discretion because the

defendant had “offered no special reason in favor of disclosure”

and because “potential witnesses had been threatened, assaulted,

even murdered.” Id. at 913, 918. Other circuits are in accord.

See Clark v. Ricketts, 958 F.2d 851, 855 (9th Cir. 1991); United

States v. Watson, 599 F.2d 1149, 1157 (2d Cir. 1979), amended

on reh’g on other grounds, 690 F.2d 15 (2d Cir. 1979), modified

on reh’g on other grounds sub nom. United States v. Muse, 633

F.2d 1041, 1042 n.1 (2d Cir. 1980); Caldwell v. Minnesota, 536

F.2d 272, 273–74 (8th Cir. 1976); United States v. Alston, 460

F.2d 48, 51–52 (5th Cir.1972); United States v. Palermo, 410

F.2d 468, 472 (7th Cir. 1969). The Supreme Court observed, in

rejecting the view that Fifth Amendment due process required

the prosecution to disclose material impeachment evidence prior

to entry of a plea, that the “careful tailoring that characterizes

most legal Government witness disclosure requirements” helps

prevent “disrupt[ing] ongoing investigations” and “expos[ing]

prospective witnesses to serious harm.” Ruiz, 536 U.S. at

631–32. Indeed, concern about witness security contributed to

the 1975 defeat of a proposed revision of Criminal Rule 16 that

would have required pretrial disclosure of prosecution witnesses,

because such disclosure was considered “not in the interest of

the effective administration of criminal justice” due to

15

“[d]iscouragement of witnesses and improper contacts directed

at influencing their testimony.” H.R. Rep. No. 94-414, at 12

(1975) (Conf. Rep.), reprinted in 1975 U.S.C.C.A.N. 713, 716.7

Contrary to appellants’ implicit assumptions, then, pretrial

disclosure of the prosecution’s case is not always without

limitation.

On the record before the district court there can be little

question that a protective order for certain Colombian

government witnesses was appropriate in light of the

government’s submissions in its sealed in limine motion for a

protective order. Valderama and Giraldo object that the

protective order was unnecessary because the government never

demonstrated that any of the appellants had personally

threatened any government witness. However, the

government’s sealed motion recounted how the FARC, with

which appellants were associated in varying degrees, had

[REDACTED]

issued bulletins threatening death to anyone who “betrayed

. . . Valderama,” and directly threatened to kill at least two

cooperating witnesses; the in limine motion indicated the FARC

had routinely used violence against its enemies. The

appropriateness of using pseudonyms to protect witnesses does

not depend on whether the threat to the witness comes directly

from a defendant or from another source. Valderama’s

reference to Giles v. California, — U.S. —, 128 S. Ct. 2678

7

In a similar vein, the United States Attorneys’ Manual states

that although disclosing information prior to trial might make the trial

more efficient, “pretrial disclosure of a witness’ identity or statement

should not be made if there is, in the judgment of the prosecutor, any

reason to believe that such disclosure would endanger the safety of the

witness or any other person, or lead to efforts to obstruct justice,” and

suggests “applying for a protective order if discovery . . . may create

a risk of harm to the . . . witness.” U.S. Attorneys’ Manual § 9-6.200

(Nov. 2000).

16

(2008) is inapposite, because here the protected witnesses

testified at trial while Giles addressed possible forfeiture of a

defendant’s Sixth Amendment right to confront a witness when

the defendant wrongfully made the witness unavailable to

testify. See Giles, — U.S. at —, 128 S. Ct. at 2678, 2687–88.

In addition, Valderama’s reliance on Roviaro, 353 U.S. 53, for

the proposition that the government may not prosecute a case

while protecting the identity of a witness is misplaced. Unlike

here, where the government disclosed the true identities of

protected witnesses to defense counsel and those witnesses

testified at trial under pseudonyms, Roviaro involved a non-

testifying confidential informant.

The protective order and its management by the district

court reflect an appropriate balancing of interests in the relevant

case-specific context in view of the factors described in Alford

and Smith as well as Roviaro, 353 U.S. at 61–62. On the one

hand, Valderama, Giraldo, and Celis were indicted for engaging

in a drug conspiracy with ties to the FARC, and the government

presented evidence that in Colombia the FARC had killed

people suspected of helping to arrest Valderama [REDACTED]

and had

threatened to kill cooperating witnesses. On the other hand,

there were special circumstances affecting the ability of

appellants to prepare for cross-examination. The prosecution

rested on witnesses and events located in a foreign country in

which another language was spoken. Because the government

planned to have some of the threatened government witnesses

testify under pseudonyms about their own involvement with

appellants and the FARC in drug trafficking, the defense would

attempt to attack the credibility of these witnesses at trial. To

enable such confrontation, the district court balanced the reality

of potentially life-threatening dangers to the protected witnesses

and their families, and the defense need to prepare to cross-

examine the protected witnesses by allowing defense access to

17

the true identities of the protected witnesses days before their

testimony and, when shown to be necessary for those purposes,

allowed investigation using these true identities in the United

States and in Colombia. Upon defense requests, the district

court permitted investigations using protected witnesses’ true

identities, albeit not pretrial as defense counsel would have

preferred and not always for as long a period of time as defense

counsel desired. For example, the district court granted the

requests of Valderama’s counsel to investigate two protected

witnesses using their true identities.

On appeal appellants’ objections to the use of pseudonyms

reflect frustration and disagreement with the district court’s

refusal to grant additional time for investigation and review of

disclosed materials rather than identifying instances of actual

prejudice to their Sixth Amendment confrontation rights. To the

extent more investigation was needed and discovery burdened

defense counsel, determining whether to grant a continuance is

a question that lies within the sound discretion of the district.

See infra Part III. Although defense counsels’ frustrations with

proceeding under a protective order calling for a “may I”

procedure are understandable, the question the court is

addressing here is limited to whether appellants’ confrontation

rights were violated, and appellants fail to demonstrate that the

district court’s protective order procedure allowing the use of

pseudonyms did so.

Valderama’s contention that the protective order so limited

investigation of the protected witnesses that she was denied her

Sixth Amendment right to the effective assistance of counsel is

unpersuasive. There is a “strong presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance” under Strickland v. Washington, 466 U.S. 668, 689

(1984). Valderama’s counsel pursued vigorous cross-

examination of the protected witnesses and the one instance she

cites for prejudice, regarding a belatedly noticed date in the

18

header of a fax transmission regarding “Valdez,” reveals upon

examination no prejudice at all. See infra Part III. Valderama’s

reliance on United States v. DeCoster, 487 F.2d 1197, 1204

(D.C. Cir. 1973), for the proposition that trial counsel is

constitutionally ineffective if counsel does not investigate

witnesses, fails to acknowledge that DeCoster predated

Strickland and that the circumstances of the two cases are not

comparable; DeCoster involved counsel’s dereliction not, as

here, limitations on investigation imposed by a court. Neither

is Valderama’s reference to Geders v. United States, 425 U.S.

80, 91 (1976), persuasive; Geders involved a court’s restriction

on communications between a defendant and defense counsel

rather than a restriction on international investigation of

endangered witnesses. Even by analogy to Valderama’s cases,

the record shows the district court accommodated Valderama’s

requests for additional time to investigate “Valdez” and

“Moreno.” Although purporting to deny Valderama’s request for

a continuance on January 25, 2007 to investigate “Moreno,” the

district court postponed cross-examination of “Moreno” to allow

such investigation and on January 29 permitted investigation in

Colombia using the true identity of “Moreno.” Again, although

denying Valderama a continuance on January 29 to investigate

“Valdez,” the district court allowed Valderama’s counsel to

investigate “Valdez” in the United States and in Colombia using

his true identity and adjourned the trial early the day before

Valderama’s February 1 cross-examination of “Valdez.”

Doubtless out-of-the-country events and the protected status

of witnesses allowed to testify under pseudonyms create

inconveniences for the parties in a criminal case that a district

court must accommodate. But in addressing the law

enforcement interests of the government, the district court

protected appellants’ constitutional rights by affording a means

for the defense to obtain time for investigations and for

processing disclosed information. The protective order and the

district court’s management of it involved a delicate balancing

19

of interests necessitated by extraordinary circumstances

warranting special measures to protect key witnesses. On

appeal, the burden was on appellants to show prejudice, which

they have not done. “Under all the circumstances, given the

seriousness of the threat and the extensiveness of the

cross-examination,” Watson, 599 F.2d at 1157; see infra Part III,

we hold the district court did not impermissibly intrude upon

appellants’ Sixth Amendment rights.

C.

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme

Court held that “suppression by the prosecution of evidence

favorable to an accused upon request violates due process where

the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”

Id. at 87. The Supreme Court recognized the obligation to

disclose even in the absence of a defense request. United States

v. Agurs, 427 U.S. 97, 107 (1976). Further, in Giglio v. United

States, 405 U.S. 150, 154 (1972), the Supreme Court extended

the prosecution’s Brady obligation to include the disclosure of

evidence affecting the credibility of a witness. Such information

and evidence is “material” under Brady “if there is a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.” Kyles

v. Whitley, 514 U.S. 419, 433 (1995) (quoting United States v.

Bagley, 473 U.S. 667, 682 (1985) (opinion of Blackmun, J.)).

The Supreme Court continues to reaffirm that prosecutors have

an “affirmative duty to disclose evidence favorable to a

defendant,” Kyles, 514 U.S. at 432, and that “the prudent

prosecutor will resolve doubtful questions in favor of

disclosure,” Agurs, 427 U.S. at 108; see Kyles, 514 U.S. at 439.

The timing of the government’s disclosures of Brady and

Giglio evidence and information to the defense is important. In

United States v. Pollack, 534 F.2d 964 (D.C. Cir. 1976), this

court instructed that “[d]isclosure by the government must be

20

made at such a time as to allow the defense to use the favorable

material effectively in the preparation and presentation of its

case, even if satisfaction of this criterion requires pre-trial

disclosure.” Id. at 973. Similarly, in Bagley, 473 U.S. at 678,

the Supreme Court had observed that “[t]he constitutional error,

if any, in this case was the Government’s failure to assist the

defense by disclosing information that might have been helpful

in conducting the cross-examination.” Cf. Leka v. Portuondo,

257 F.3d 89, 103 (2d Cir. 2001). Where the prosecution tardily

discloses material pursuant to Brady or Giglio, however,

appellants “must establish that had the information or evidence

been disclosed earlier, there is a probability sufficient to

undermine our confidence in the actual outcome that the jury

would have acquitted.” Tarantino, 846 F.2d at 1417. The

prosecution also must disclose under the Jencks Act, 18 U.S.C.

§ 3500, statements of a prosecution witness after the witness has

testified on direct examination, see United States v. Oruche, 484

F.3d 590, 597 (D.C. Cir. 2007); FED. R. CRIM. P. 26.2, in a

manner allowing the defense “a reasonable opportunity to

examine it and prepare for its use in the trial,” United States v.

Holmes, 722 F.2d 37, 40 (4th Cir. 1983); cf. United States v.

Stanfield, 360 F.3d 1346, 1357 (D.C. Cir. 2004).

The district court stated at the motions hearing on

December 8, 2006, in response to defense requests for Brady,

Giglio, and Jencks material, that “[t]he government says it’s

well aware of its obligations and is going to do what it needs to

do, and if it hasn’t already done it, I’m confident they will do it.”

Mot. Hr’g Tr. 8, Dec. 8, 2006. The record indicates, however,

that witness security concerns influenced the government’s

decisions on disclosure. At the motions hearing on January 8,

2007, the government recommended “restrictive conditions for

the disclosure of any information [it] turn[s] over to the defense

because of the high security concerns for [its] witnesses.” Mot.

Hr’g Tr. 22, Jan. 8, 2007. The government also cautioned that

the Jencks material “gives a lot of information that could lead to

21

security concerns.” Id. at 24. When defense counsel inquired,

in light of the district court’s protective order, when Giglio and

Jencks material would be provided, the government stated it

would turn over Giglio evidence to defense counsel at the start

of trial but with the identities of the witnesses who would testify

under pseudonyms redacted. The true identities of the protected

witnesses would, the government proposed, be disclosed seven

days before each witness testified. Jencks statements would be

turned over at least two days before each witness testified. In

responding to a defense request for the true identities of two

particular protected witnesses, the government proposed

disclosing the identities only after the jury was sworn, but the

district court directed the disclosure occur before the jury was

sworn.

As it turned out, the government sometimes made

disclosures earlier or later than it had proposed. On occasion the

government did not receive material from Colombia until the

trial had started, as, for example, with the written and video

statements by protected witness “Moreno.” Even so, the

government disclosed Jencks material for “Moreno” on January

22, more than two days before he testified on January 25, and

nine days before his cross-examination on January 31. On

January 25, the government disclosed Jencks material for

protected witness “Valdez” and other witnesses expected to

testify the next week. However, the government did not disclose

some Giglio evidence for “Valdez” until January 29 and he was

scheduled to testify the following day, although he did not

actually testify until January 31. In the district court Valderama

challenged the government’s disclosures as untimely, and this

court’s review of the materiality of potential violations of Brady

and Giglio is de novo. See Oruche, 484 F.3d at 596; United

States v. Cuffie, 80 F.3d 514, 517 (1996).

Valderama contends the disclosed Brady and Giglio

materials were turned over too late for the defense to make

22

effective use of them. Although counsel for the United States

asserted during oral argument that the prosecution has no

obligation to disclose impeachment evidence prior to the first

day of trial, even if it has been redacted in accord with a

protective order, counsel acknowledged that the critical point is

that disclosure must occur in sufficient time for defense counsel

to be able to make effective use of the disclosed evidence. Cf.

Bagley, 473 U.S. at 678; Pollack, 534 F.2d at 973.

One of Valderama’s (and Giraldo’s) objections is that so

much information was being disclosed by the government that

effective use was prejudiced once the redacted names were

disclosed to the defense. The record indicates that the volume

of material turned over by the government presented practical

difficulties for the defense. At trial the government noted it had

provided between six thousand and seven thousand pages of

material to the defense during the months before trial, including

five thousand wiretap calls, and had turned over eighteen

“discovery packages” in the eighteen months before trial. The

government did not provide redacted Giglio material until the

first day of trial, and later provided the true identities that

defense counsel could “then match to the Giglio.” Mot. Hr’g Tr.

24, Jan. 8, 2007. Thus defense counsel needed to process this

Giglio material in light of the pretrial discovery materials, as

well as the Jencks material later disclosed by the government,

during trial.

Counsel for Valderama suggested to the district court that

the use of redactions should have allowed the government to

disclose the redacted material earlier, and counsel for Valderama

and Giraldo informed the district court that they were having

difficulty during trial processing the disclosed material quickly

enough for use. During trial, the district court observed that it

was “the government’s case to overtry,” such as by “bring[ing]

on evidence on too short notice as to which [defense counsel]

make either now or later . . . some showing of prejudice.” Trial

23

Tr. 1421–22, Jan. 29, 2007. Under the circumstances,

Valderama’s objection that required disclosures under Brady

and Giglio were not timely is not without some persuasive force.

See Pollack, 534 F.2d at 973–74. But the question now is

whether this untimeliness was “sufficient to undermine our

confidence in the actual outcome” of the trial. Tarantino, 846

F.2d at 1417.

Valderama maintains that the government should have

disclosed earlier both the statements of “Valdez” to Colombian

authorities that did not implicate Valderama in certain drug

trafficking and a report and interviews related to “Valdez” that

did not implicate Valderama in particular violent crimes.

Perhaps so. However, Valderama’s counsel’s discussion of the

report and interviews and her February 1 cross-examination of

“Valdez” demonstrate that she was able to make effective use of

the materials nonetheless. For example, Valderama’s counsel

told the district court that the report and interviews did not

implicate Valderama in any murders, and Valderama’s counsel

cross-examined “Valdez” regarding inconsistencies raised by

these materials about the length of time he was a member of the

FARC and his work for Valderama. Valderama’s reliance on

Pollack, 534 F.2d at 973; United States v. Enright, 579 F.2d 980,

989 (6th Cir. 1978); United States v. Beasley, 576 F.2d 626, 630

(5th Cir. 1978); Leka, 257 F.3d at 103; and United States v.

Cobb, 271 F. Supp. 159, 163 (S.D.N.Y. 1967), are unhelpful to

her. In Pollack and Enright, the courts held that the actual or

probable Brady violations had not sufficiently disadvantaged the

defendants to change the results of the trial; Beasley and Leka

involved failed or suppressed rather than untimely disclosure; in

Cobb the court discussed why timely disclosure is important.

Even assuming Valderama’s counsel might have made more

effective use of tardily disclosed information and evidence had

the government timely fulfilled its disclosure obligations in all

respects, the government’s evidence against appellants was

24

overwhelming. For example, not only were there video and

wiretap recordings, there was extensive testimony by “Rocio

Alvarez” and other government witnesses about Valderama’s

central role in managing and carrying out the conspiracy to

manufacture and export cocaine from Colombia into the United

States. Appellants therefore fail to show the untimely

disclosures were “material.” See Kyles, 514 U.S. at 433–34.

III.

Valderama raises four objections relating to her ability to

challenge the government’s case at trial. First, Valderama

contends that the trial court prevented her from cross-examining

several of the government’s witnesses in violation of her Sixth

Amendment right to confrontation. Second, she argues that the

district court abused its discretion by denying her motions for a

continuance so that she could review materials turned over by

the government pursuant to the Jencks Act. Third, she argues

that she was denied the right to participate in her own defense

because she did not receive written translations in Spanish of all

documents turned over in discovery. Finally, she argues she was

denied a fair trial because the government denied her access to

government witnesses. We do not think any of the grounds

relied upon merit reversal.

A.

Beginning with the Confrontation Clause argument,

Valderama’s primary contention is that the district court violated

her rights by placing limits on her cross-examination of Juan

Valdez. Valdez testified that, as part of his role as a security

guard for the FARC, he accompanied Valderama on several trips

throughout the Caguan region where Valderama delivered

money and picked up large shipments of cocaine base.

During cross-examination, counsel for Valderama

attempted to impeach Valdez with a statement he gave to

25

Colombian authorities. Initially, however, Valdez denied that

the signature on the statement was his. On appeal, Valderama

claims the district court prevented her from impeaching Valdez

by demonstrating that the signature was in fact his. Discussion

at a side-bar conference indicated, however, that Valdez denied

that it was his signature because he was concerned about not

disclosing his real name. In any event, the district judge

instructed the jury that, despite Valdez’s initial confusion, the

signature and statement did belong to him. Given this

instruction from the judge, the jury would not have received a

“significantly different impression” of Valdez’s credibility had

Valderama’s counsel been allowed to press Valdez about his

initial denial and thus no confrontation clause violation can be

shown. United States v. Davis, 127 F.3d 68, 70-71 (D.C. Cir.

1997).

In addition to the signature issue, Valderama argues that the

trial court violated her Sixth Amendment rights by prohibiting

her from impeaching Valdez with the substance of the written

statement. Specifically, Valderama argues that the trial court

prevented her (a) from asking Valdez why the statement

mentioned Valderama but did not refer to the frequent drug-

running trips with her he testified to on direct examination and

(b) from probing inconsistencies between his trial testimony and

the written statement regarding his length of service in the 14th

Front. But Valderama did have the opportunity to effectively

question Valdez on both of these points. The trial court

explicitly permitted Valderama’s counsel to ask Valdez if the

statement referred to his drug-running trips with Valderama.

Counsel did so and Valdez conceded it did not. And while

Valderama argues she was prevented from asking Valdez why

he omitted such a significant fact in his statement, Valdez did

provide an explanation, stating that the Colombian authorities to

whom he gave the statement did not ask him about that subject.

26

As for the length of Valdez’s service, in both cross-

examination and re-cross Valderama’s counsel pressed Valdez

on the discrepancy between the written statement that said he

had been with the 14th Front for five years and his trial

testimony that he had spent approximately nine years with the

group. Ultimately, Valdez responded that the five years listed

in the written statement was incorrect. While the trial court did

eventually limit defense counsel’s questions on this issue,

Valderama’s counsel was able to effectively point out the

discrepancy. That is all the Sixth Amendment requires. See

Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“[T]he

Confrontation Clause guarantees an opportunity for effective

cross-examination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense might

wish.”).

Valderama raises one additional complaint with respect to

her cross-examination of Valdez. She claims that the trial court

prevented her from asking Valdez about a fax header on the

written statement that indicated Valdez gave the statement in

2003. She asserts the date is material because the statement was

purportedly given when Valdez turned himself in to Colombian

authorities and thus contradicts Valdez’s testimony that he

remained with the FARC through 2005. Although the trial court

did say that it would not allow questions regarding the date

listed in the text of the statement because it believed it was the

result of a typographical error, apparently neither the parties nor

the court noticed the fax header at all. Indeed, even Valderama

admits that the date on the fax header was “faint” and that even

her counsel did not discover it until after trial. Appellant

Valderama Br. 25. Because Valderama’s counsel did not even

notice the date in the fax header, much less attempt to use it to

impeach Valdez at trial, we cannot say that the court somehow

deprived Valderama of her right to confront Valdez on this

issue.

27

Valderama also raises Confrontation Clause challenges

concerning her questioning of other witnesses, but these

challenges also lack merit. For instance, she claims that the

court did not allow her to cross-examine Mauricio Moreno with

records showing a prior conviction, but the government and

Valderama’s counsel agreed at trial that the records in question

were, at best, inconclusive as to whether they referred to

Moreno. In addition, she claims that she was prevented from

impeaching Moreno with video testimony he gave in a prior

Colombian proceeding. It is simply not the case, however, that

the court prevented Valderama from pursuing this line of

questioning. Valderama acknowledges she did not pursue it

because she did not have an English transcript of that prior

testimony, yet her counsel received the video six days before

cross-examination began and neither had a transcript produced

nor asked the court to produce one. And while Valderama

claims she was forced to cut short her cross-examination of

Rocio Alvarez when her counsel learned that Alvarez was not

the confidential source listed in a report produced by the DEA,

we simply do not understand how this confusion on the part of

her attorney could have violated Valderama’s Confrontation

Clause rights.8

Finally, Valderama claims her counsel could not effectively

cross-examine Rodrigo Jardinero because the government

misled her into believing that Jardinero had never met her client,

leaving counsel unprepared when Jardinero testified that he

discussed drug dealing with Valderama at a meeting in a

Panama restaurant. We have no need to probe the government’s

motives nor whether Valderama’s counsel was genuinely

surprised at the testimony, for it is clear that counsel more than

overcame any initial shock—she cross-examined Jardinero at

8

Valderama also claims that she was prevented from

confronting hearsay statements by Moreno, but the only citations in

her brief on this issue are to defense objections that were sustained.

28

length about the meeting at issue and his general credibility.

This was undoubtedly effective cross-examination under the

Sixth Amendment.

B.

Turning to Valderama’s next argument, she asserts that her

conviction should be overturned because the district court

improperly denied several motions for continuances. Valderama

sought continuances to review material produced by the

government pursuant to the Jencks Act, 18 U.S.C. § 3500. We

review the denial of a motion for a continuance to review Jencks

material for an abuse of discretion. United States v. Stanfield,

360 F.3d 1346, 1358 (D.C. Cir. 2004). In order to obtain

reversal, an appellant must show that actual prejudice resulted

from denial of the continuance. United States v. Kelley, 36 F.3d

1118, 1126 (D.C. Cir. 1994). We find no grounds for reversal.

Valderama makes much of the district court’s statement at

the outset of trial that there would be “100 percent no

continuances.” This unflinching desire for expeditiousness, she

contends, resulted in an abuse of discretion when the court

refused to adjourn proceedings to allow appellants to review

Jencks material and prepare for its use.9 But while the district

court did wish to avoid continuances, it did in fact make

adjustments in the trial schedule to give the appellants time to

review Jencks material. For example, when the appellants

9

The Jencks Act obligates the government to turn over

“statements” of government witnesses. 18 U.S.C. § 3500(b). Unlike

the government’s Brady obligations, the government is not required

to turn over Jencks material until after the witness has testified at trial.

Id. Yet while the government may wait until after its witness has

testified to turn over material, the act gives the district court discretion

“to recess proceedings in the trial for such time as it may determine to

be reasonably required for the examination of such statement by said

defendant and his preparation for its use in the trial.” Id. § 3500(c).

29

sought a continuance to review Jencks statements by Mauricio

Moreno, the district court denied the continuance motion but

postponed Moreno’s cross-examination and moved on to other

witnesses, giving defense counsel six additional days to review

the Jencks material for Moreno. We found no abuse of

discretion in a case in which the district court gave defense

counsel nine minutes to review “a very thick stack of papers,”

Stanfield, 360 F.3d at 1358, so we surely could not criticize the

district court for providing six days.

We view similarly the district court’s denial of a

continuance to review Jencks material concerning Juan Valdez.

The Jencks material concerning Valdez was provided on January

25, but counsel did not request a continuance until January 29,

and cross-examination did not begin until February 1. Counsel

thus had seven days to review the material before cross-

examination.

To be sure, Valderama points out that, at least with respect

to Valdez, she sought a continuance not only to review the

Jencks material but also to use the material as a basis to perform

an investigation of Valdez; she asserts she simply did not have

enough time to conduct an adequate investigation into an

individual who resides in a foreign country. Valderama did,

however, have the opportunity to communicate with a

Colombian law enforcement official and a Colombian

prosecutor familiar with Valdez. And while she may have

wished to conduct a fuller investigation, she does not identify

any other people she would have interviewed with additional

time, much less what information she believes she may have

uncovered and how any such information could have affected

the result at trial in any way. Moreover, as discussed supra,

Valderama’s counsel vigorously cross-examined Valdez using

the statement he gave to Colombian authorities to challenge his

credibility. As a result of all of this, Valderama cannot

30

demonstrate actual prejudice and is thus not entitled to

reversal.10

C.

Next, Valderama argues her conviction should be

overturned because the court did not require that all discovery

documents containing English be translated into Spanish. This

was required, Valderama asserts, because she has a right to

assist in preparing her own defense and her inability to

comprehend English prevented her from doing so. It is simply

not the case, however, that a language barrier completely

prevented Valderama from assisting in her own defense. After

all, she had the benefit of interpreters for all courtroom

proceedings and her defense counsel was bilingual, and thus

could have effectively discussed any relevant discovery

materials with Valderama. In light of these facts, Valderama’s

constitutional claim is actually quite audacious: she asks us to

hold that the Constitution compels that in every case in which

defendant is not fluent in English, all discovery documents must

be translated, in written form, into the defendant’s native tongue,

even if defendant’s counsel is bilingual.

10

In addition to her motions for continuances to review Jencks

Act material, Valderama also claims the district court should have

granted a continuance during the testimony of Rodrigo Jardinero for

entirely different reasons. As discussed supra, she claims the

government misled her counsel into believing that Jardinero and

Valderama had never met. She submits that counsel’s surprise when

Jardinero testified to knowing Valderama left her unprepared, so the

court should have ordered a continuance. Once again, Valderama

cannot demonstrate prejudice. As discussed supra, Valderama’s

counsel overcame any surprise and cross-examined Jardinero at length

about the meeting at issue and his general credibility. We can find no

prejudice in light of such exemplary cross-examination. See Kelley,

36 F.3d at 1126 (defendant not prejudiced by denial of motion for

continuance when counsel presented “high quality” defense).

31

There is simply no support for such a claim. In United

States v. Mosquera, 816 F. Supp. 168, 175 (E.D.N.Y. 1993), the

strongest case for Valderama’s position, a district court ordered

the government to turn over a copy of the indictment translated

into Spanish and additionally ordered that “[a]ll documents,

except motion papers and original evidence” be translated, id. at

171.11 In doing so, however, the court explained that the scope

of translation in a given case is committed to the district court’s

discretion, id. at 174, and noted special factors that led it to

require written translations in that case – the case included

eighteen defendants that did not understand English, each

defendant was represented by separate counsel, and the

defendants were unable to understand even the charges and

evidence against them. Id. at 170, 176. Furthermore, a number

of other courts have recognized that “Mosquera does not stand

for the proposition that criminal defendants enjoy a

constitutional right to written translations of [all] court

documents.” United States v. Gonzales, 339 F.3d 725, 729 (8th

Cir. 2003); see also Canizales-Satizabal v. United States, 1995

WL 759472 *1 n.2 (7th Cir. 1995) (“This court . . . has never

held that a defendant has a constitutional right to have

documents translated into his own language.”); Sanders v.

United States, 130 F. Supp. 2d 447, 449 (S.D.N.Y. 2001) (“The

Constitution does not require that [information in court

documents] be communicated in writing in a foreign

language.”). We agree. “A court may decide to provide written

translations in difficult and complicated cases,” Gonzales, 339

F.3d at 729 (emphasis supplied), but that decision, like the

management of discovery in general, is committed to the district

court’s discretion. See Islamic Am. Relief Agency v. Gonzales,

477 F.3d 728, 737 (D.C. Cir. 2007). And in this case, in which

11

It is not obvious to us that discovery documents such as

those at issue here would have come within the ambit of the relatively

expansive order in Mosquera. Presumably, many of the documents

produced in discovery would qualify as “original evidence.”

32

Valderama was assisted by bilingual counsel and where there is

no reason to believe Valderama was unable to understand the

charges and evidence against her, we find no abuse of discretion.

D.

Finally, we reject Valderama’s claim that she is entitled to

reversal because the government impeded her access to

witnesses. At one point in the trial, Valderama’s counsel

claimed that she had requested to interview government

witnesses before they testified but she had not received a

response. Lawyers for the government responded by saying that

the witnesses had responded, but they did not wish to be

interviewed by the defense. Valderama raised no further

objections. Without more, we have no basis to find that the

government acted in bad faith to keep witnesses from talking

with lawyers for the defense.

IV.

Appellants also raise challenges to the admission into

evidence of certain recorded conversations. None is persuasive.

A.

Giraldo contends the district court erred by admitting

wiretapped recordings of his telephone conversations. He

maintains the tapes were inadequately authenticated and that the

government did not prove a proper chain of custody. We review

the district court’s rulings on these points for abuse of

discretion. See United States v. Lawson, 494 F.3d 1046, 1052

(D.C. Cir. 2007).

To authenticate audio recordings, the government must

prove that, “as a matter of reasonable probability, possibilities

of misidentification and adulteration have been eliminated.”

White, 116 F.3d at 920–21 (internal quotation marks omitted);

see also FED. R. EVID. 901(a) (“The requirement of

33

authentication . . . is satisfied by evidence sufficient to support

a finding that the matter in question is what its proponent

claims.”). At trial, the government introduced evidence that the

equipment used to record Giraldo’s phone calls was in proper

working order and that only authorized personnel had access to

the recordings. Four witnesses identified Giraldo and the other

individuals recorded. Camila Vargas, one of the officials

responsible for copying the tapes, stated that the duplication

process resulted in an “exact” copy of the original recording.

Trial Tr. at 217, Jan. 16, 2007. Giraldo argues this evidence was

insufficient because neither Vargas nor Pablo Diaz, another

official involved in duplicating the tapes, had listened to all of

the tapes to ensure a perfect duplication. But that is not the

standard for authentication. Despite the fact that no one listened

to each tape from beginning to end, the district court heard

evidence relating to the integrity of the duplication procedures

and the quality of the machinery. Based upon this showing, we

conclude that the court did not abuse its discretion by

determining that the recordings were authentic “as a matter of

reasonable probability.” White, 116 F.3d at 920–21.

Giraldo also argues that the government failed to establish

an adequate chain of custody because it provided no evidence of

who transferred the original recordings from their maker,

Alfonso Sanabria, to Vargas. But the government need not

show the identity of each person who had custody of the tapes.

See Robinson v. United States, 283 F.2d 508, 509 (D.C. Cir.

1960). Instead, the government must only “demonstrate that, as

a matter of reasonable probability, possibilities of

misidentification and adulteration have been eliminated.”

United States v. Stewart, 104 F.3d 1377, 1383 (D.C. Cir. 1997)

(internal quotation marks omitted). The government easily met

its burden. Sanabria testified regarding his office’s protocols:

“Each DVD receives a number, and then it is put in its package,

in its case, and it’s given to another division, another agency

within that same work area. And they are in charge of keeping

34

the chain of custody of the DVD, and they place it in the vault,

which is in an area with restricted access.” Trial Tr. at 175, Jan.

16, 2007. Sanabria and his staff followed these procedures. See

id. at 166–70, 172–75, 192–94. On this evidence, the district

court did not abuse its discretion by admitting these recordings.

B.

Celis contests the admission of a videotaped recording of a

conversation between Alvarez, a cooperating witness, and

Giraldo. The video contained numerous statements by Giraldo,

which the government offered as direct evidence of the

conspiracy. Over appellants’ objections, the district court

admitted the statements under Federal Rule of Evidence

801(d)(2)(E), which permits admission of statements made by

coconspirators in furtherance of a conspiracy. Celis argues the

statements were not meant to further the conspiracy and, in any

event, the conspiracy had ended by the time they were made.

We review for clear error the court’s determinations that a

particular statement was made during and in furtherance of a

conspiracy. See United States v. Edmond, 52 F.3d 1080, 1110

(D.C. Cir. 1995). To find clear error, we must be “left with the

definite and firm conviction that a mistake has been committed.”

Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (internal

quotation marks omitted). Our clear error review requires that

we defer to the district court’s evaluation of the statements in

light of the other evidence that has been presented. See

Edmond, 52 F.3d at 1111 (declining to find clear error when the

statements “plausibly may be interpreted” as advancing the

conspiracy).

A statement is made “in furtherance of a conspiracy” when

it

can reasonably be interpreted as encouraging a

[coconspirator] or other person to advance the

conspiracy, or as enhancing a [coconspirator] or other

35

person’s usefulness to the conspiracy . . . . Such

statements include those that keep a coconspirator

updated on the status of the business, motivate a

coconspirator’s continued participation, or provide

background information on key conspiracy members.

United States v. Carson, 455 F.3d 336, 366–67 (D.C. Cir. 2006)

(internal quotation marks and citations omitted). Celis objects

generally to the entire video, contending that “[a]ll

conversations on the video are hearsay,” Appellant Celis Br. 22,

and he argues specifically that the following admitted statements

were not made in furtherance of the conspiracy.

First, Celis claims that Giraldo’s statements relating to

Celis’s debt to Valderama and the lost shipment of cocaine are

inadmissible “past narratives” and were not made in furtherance

of the conspiracy. Appellant Celis Br. 28. The district court did

not clearly err here. In United States v. Perholtz, we held that a

past narrative may be admissible if it is “part[] of continuing

activity that was essential to” the conspiracy. 842 F.2d 343, 357

(D.C. Cir. 1998). It is plausible that Giraldo made his

statements to keep Alvarez informed about the current status of

the conspiracy, ensuring that all coconspirators had up-to-date

information. Indeed, this is precisely the kind of example we

envisioned in United States v. Carson. 455 F.3d at 366–67

(holding that statements that “updated [others] on the status of

the business” were admissible).

Second, Celis argues that statements Giraldo made about his

personal access to Ramirez, his knowledge of drug routes, and

his history in the drug business were “grandstanding” and “mere

exaggeration.” Appellant Celis Br. 28–29. As we stated in

Carson, if one’s statement can be understood as enhancing one’s

usefulness to the conspiracy, it is admissible. See 455 F.3d at

366–67. We view these statements as Giraldo demonstrating

36

how he can be a more effective member of the conspiracy and

conclude there was no clear error in their admission.

Finally, Celis labels some conversations as “idle chatter.”

Appellant Celis Br. 28–29. These include statements made by

Giraldo while Alvarez was persuading him to remain in the car

so she could continue to record him, statements made by Giraldo

while having a short telephone conversation, and Giraldo’s

description of Ramirez as “dangerous.” Though these

statements did not further the conspiracy, we agree with the

government that any error in their admission was harmless. In

view of the mountain of evidence concerning Celis’s culpability,

which we have already detailed, none of these statements were

prejudicial. Likewise, we have carefully reviewed the remaining

statements made during this conversation and conclude that

Celis’s general objection to the recording lacks merit.

Statements not specifically identified by Celis undeniably

furthered the conspiracy. See, e.g., Video Tape Exhibit N-6

(May 22, 2003) at 10 (“First of all, was that merchandize [sic]

going to New York or to Miami?”); id. at 11 (“How much was

it sold for?”).

The district court also did not clearly err by concluding that

the conspiracy remained intact at the time of Giraldo’s

statements. By this point, Celis suggests, the conspiracy “was

broken and no longer functioning” because Valderama had

threatened to kill Celis in 2002 over an outstanding debt from an

earlier drug shipment. Appellant Celis Br. 24. Though there was

evidence that Valderama did threaten to kill Celis, the

conspiracy remained alive. Indeed, the government introduced

a recording of Celis and Giraldo from May 20, 2003, which

demonstrates they were still in communication regarding the

conspiracy. In addition, Alvarez testified that Giraldo had

informed her on May 22, 2003 that Celis continued to attempt

to sell Valderama’s cocaine to pay off his outstanding debt. See

Trial Tr. at 694, Jan. 18, 2007. Given this evidence, the district

37

court did not clearly err by finding that the conspiracy remained

intact at the time of the recording. Admitting the videotaped

recording, therefore, was not an abuse of discretion.

V.

Appellants raise two challenges regarding the indictment.

First, Giraldo argues the district court erred by denying his

motion to sever the indictment. Next, Celis argues the evidence

at trial impermissibly varied from the indictment. We reject each

challenge.

A.

Giraldo asked the district court to sever the indictment so

that he would be tried separately from Valderama. The district

court denied the request. Federal Rule of Criminal Procedure 14

permits the district court to sever an indictment if “the joinder

of offenses . . . appears to prejudice a defendant.” FED. R.

CRIM. P. 14. The Supreme Court has instructed district courts

to grant severance “only if there is a serious risk that a joint trial

would compromise a specific trial right of one of the defendants,

or prevent the jury from making a reliable judgment about guilt

or innocence.” Zafiro v. United States, 506 U.S. 534, 539

(1993). District courts should grant severance sparingly because

of the “strong interests favoring joint trials, particularly the

desire to conserve the time of courts, prosecutors, witnesses, and

jurors.” United States v. Mardian, 546 F.2d 973, 979 (D.C. Cir.

1976). We review the denial of a motion to sever for abuse of

discretion, which we will not find “if the jury could reasonably

compartmentalize the evidence introduced against each

individual defendant.” United States v. Mejia, 448 F.3d 436,

446 (D.C. Cir. 2006) (internal quotation marks omitted).

Valderama was a member of the FARC. Giraldo was not.

Giraldo claims he was prejudiced by the joint trial because the

government introduced evidence relating to FARC atrocities that

38

had nothing to do with him. If the indictment had been severed,

Giraldo argues, the jury would have considered his guilt or

innocence without hearing a word about the FARC. That may

well be true, but it does not follow that the jury was incapable of

fairly assessing Giraldo’s guilt. We have found juries capable

of determining the guilt or innocence of an individual tried

alongside others when the prosecution presents “independent

and substantial” evidence regarding each defendant’s

culpability. United States v. Halliman, 923 F.2d 873, 884 (D.C.

Cir. 1991). At trial, the government offered ample evidence of

Giraldo’s personal involvement in the conspiracy. Indeed, the

evidence against Giraldo involved far more than unproven

allegations of an association with the FARC. See, e.g., Trial Tr.

at 602, Jan. 18, 2007 (describing Giraldo’s role in arranging a

meeting between Alvarez and Ramirez); id. at 621 (describing

Giraldo’s role in informing Valderama that Celis’s shipment had

been confiscated); Trial Tr. at 1157, Jan. 25, 2007 (describing

Giraldo’s role in shipping 400 kilograms of cocaine to the

United States); id. at 1164–65 (describing the plan to ship

cocaine “via the routes [Giraldo] maintained to the United

States”). The jury could assess his personal culpability because

it heard a significant amount of evidence relating to his own

unlawful acts quite apart from anything said about the FARC.

Moreover, the district court instructed the jury to base its

evaluation of each defendant’s guilt on his or her own conduct

— not that of the FARC:

[T]he FARC is not a defendant in this case, and the

defendants are not on trial for having knowledge of, or

being associated with, the FARC. . . . [T]he government

must prove as to each defendant that he or she

knowingly and willfully joined and participated in the

conspiracy.

39

Trial Tr. at 2253, 2256, Feb. 7, 2007. This instruction fully

addressed Giraldo’s concern. Because the jury is “presumed to

follow [its] instructions,” Zafiro, 506 U.S. at 540, “these

instructions cured any possible risk of prejudice,” Carson, 455

F.3d at 375. The independent evidence of Giraldo’s guilt and

the court’s instruction lead us to conclude that the jury could

separate the evidence against Giraldo from the evidence against

his co-defendants. The district court did not abuse its discretion

by denying his motion to sever.

B.

Celis claims that his trial was unfair because the

government offered evidence of multiple conspiracies, although

the indictment charged him with only one. The government’s

evidence, he argues, described criminal activity beyond what

was alleged in the indictment. If Celis were correct that the

government presented evidence of multiple conspiracies, he may

also be correct that the jury might well have conflated evidence

of crimes for which he was not charged with evidence of the

offenses for which he was indicted. Even so, “[a] variance

between the allegations of the indictment and the proof at trial

constitutes grounds for reversal only if the appellant proves

(1) that the evidence at trial established facts materially variant

from those alleged in the indictment, and (2) that the variance

caused substantial prejudice.” Tarantino, 846 F.2d at 1391.

Even if we assume that the trial evidence varied from the

indictment, Celis cannot prove prejudice, which requires a

showing that the jury was “substantially likely” to consider

evidence of a crime for which he was not indicted in its

assessment of his guilt. Id.; see United States v. Gaviria, 116

F.3d 1498, 1533 (D.C. Cir. 1997). Celis claims that the

government’s evidence of others’ crimes was “intermingled with

testimony regarding Celis, making it difficult to parcel out and

separately consider.” Appellant Celis Br. 17. We look to three

factors to determine how difficult it was for a jury to separate

allegations against multiple defendants.

40

First, the number of co-defendants is significant because

jurors will be less likely to transfer guilt from one defendant to

another when there are only a few. See Gaviria, 116 F.3d at

1533. We have found that the trial of four co-defendants

presented no possibility of spillover prejudice even when the

government put on evidence that varied from the crimes charged

in the indictment. See, e.g., id.; United States v. Mathis, 216

F.3d 18, 25 (D.C. Cir. 2000). With only three co-defendants, the

risk of spillover prejudice was not substantial, see Gaviria, 116

F.3d at 1533, and we conclude that the jury could have

distinguished among the crimes and determined without great

difficulty what evidence fit which defendant.

Second, “the danger of spillover prejudice is minimal when

the Government presents tape recordings of individual

defendants.” Id. Recordings of telephone calls of Celis,

Valderama, and Giraldo were put into evidence, as well as a

video recording of Giraldo’s conversation with Alvarez. When

the government presents an audio or video recording of the

defendant discussing criminal acts, the risk of prejudicial

spillover is minimal because the jury has “no need to look

beyond each defendant’s own words in order to convict.”

United States v. Anderson, 39 F.3d 331, 348 (D.C. Cir. 1994)

(internal quotation marks omitted), rev’d in part on other

grounds, 59 F.3d 1323 (D.C. Cir. 1995) (en banc).

Third, we consider whether the district court eliminated any

potential prejudice through a clarifying jury instruction. When

the jury is “properly instructed that proof of several conspiracies

is not proof of the single conspiracy charged, the risk of

prejudicial error is greatly diminished, if not eliminated

altogether.” United States v. Flood, 965 F.2d 505, 509 (7th Cir.

1992). Here, the court instructed the jury to acquit if it found

the defendants had participated in a conspiracy other than that

alleged in the indictment:

41

[I]f you find from all the evidence that one or more

separate conspiracies existed, you must determine

whether at least one of them is the single conspiracy

that the indictment charges. If you should find that a

particular defendant was a member of a separate

conspiracy but not the one charged in the indictment,

then you must acquit that defendant.

Trial Tr. at 2258, Feb. 7, 2007. We assume juries follow their

instructions, see Zafiro, 506 U.S. at 539–41, and Celis raises no

argument nor proffered evidence that would suggest to us that

the jury did not heed the court’s admonition. See United States

v. Clarke, 24 F.3d 257, 264 (D.C. Cir. 1994) (“To find reversible

error, we would have to conclude that the jury disregarded the

court’s instructions.”). This instruction, therefore, “cure[d] any

risk of prejudice.” Carson, 455 F.3d at 374–75.

In light of the small number of co-defendants, the audio

recordings of each defendant, and the explicit jury instruction,

we hold that any purported variance from the indictment was not

prejudicial to Celis and does not warrant reversal.

VI.

We conclude by considering Valderama’s remaining

contentions that the evidence was insufficient to warrant a

conviction, the trial was fundamentally unfair, and the district

court abused its discretion in denying her motion for a new trial.

None is persuasive.

A.

Putting to one side the videotapes and audio recordings she

argues should never have been admitted into evidence and the

Confrontation Clause errors she claims infected much of the

trial, Valderama asserts that the remaining “untainted” evidence

was insufficient to convict her as a matter of law. Of course, we

42

have just concluded that all of the “tainted” evidence cited by

Valderama was properly admitted and that there were no

Confrontation Clause errors. Because Valderama’s argument

proceeds from a flawed premise, we need not refute her

hypothetical allegations of error. Thus, we consider only

whether the properly admitted evidence was sufficient for “any

rational trier of fact [to] have found the essential elements of the

crime beyond a reasonable doubt.” United States v. Arrington,

309 F.3d 40, 48 (D.C. Cir. 2002) (internal quotation marks

omitted). We have no difficulty concluding that the evidence

supported the jury verdict against Valderama. The government

presented detailed, eye-witness testimony that she coordinated

the production, refining, and distribution of massive quantities

of cocaine in connection with the indicted conspiracy.

Likewise, the jury heard evidence that Valderama attended

relevant meetings for the purpose of initiating and then

executing the charged conspiracy.

To the extent that Celis and Giraldo have joined this

argument, our conclusion applies equally to them. The jury

heard uncontroverted evidence regarding their involvement in

the conspiracy, including recordings of Celis and Giraldo

discussing their criminal activities. Viewing the evidence in the

light most favorable to the government, as we must, see United

States v. Martinez, 476 F.3d 961, 968 (D.C. Cir. 2007), there is

no doubt that the evidence was sufficient to convict each

appellant.

B.

Valderama argues that the totality of errors committed by

the district court deprived her of a fair trial. This claim is

nothing more than a restatement of every objection she raised

before and during trial. Valderama contends that the

aggregation of these errors “worked a grave injustice,” depriving

her of her constitutional right to a fair trial. Appellant

Valderama Br. 38. Valderama directs our attention to Egan v.

43

United States for the proposition that the cumulative effect of

many errors can render a verdict reversible. 287 F. 958, 971

(D.C. Cir. 1923); see United States v. Brown, 508 F.3d 1066,

1076 (D.C. Cir. 2007). In Egan, we noted that even though

individual errors may not be sufficient to warrant reversal, the

total effect of numerous small missteps may deprive a defendant

of a fair trial. True enough, but Egan requires the defendant to

make a showing of prejudice, see 287 F. at 971, which

Valderama has not done.

C.

Finally, in two conclusory sentences, Valderama argues the

district court abused its discretion by denying her motions

requesting a new trial. See Appellant Valderama Br. 37. At

sentencing, Valderama so moved in light of her discovery of the

faint fax header on Valdez’s statement to the Colombian

authorities. See supra Part III. Additionally, Valderama moved

for a new trial because Valdez made post-trial statements to

DEA agents that purportedly contradicted his trial testimony.

See Sentencing Tr. at 5–9, July 2, 2007. Valderama contended

that these statements impeached Valdez’s testimony.

We review a district court’s decision to deny a motion for

new trial for abuse of discretion. See United States v. Johnson,

519 F.3d 478, 487 (D.C. Cir. 2008). To obtain a new trial

because of newly discovered evidence, a defendant must satisfy

five requirements:

(1) the evidence must have been discovered since the

trial; (2) the party seeking the new trial must show

diligence in the attempt to procure the newly

discovered evidence; (3) the evidence relied on must

not be merely cumulative or impeaching; (4) it must be

material to the issues involved; and (5) [it must be] of

such nature that in a new trial it would probably

produce an acquittal.

44

Id. (quoting United States v. Lafayette, 983 F.2d 1102, 1105

(D.C. Cir. 1993)). This is a high bar to cross, and Valderama

does not come close to reaching it. In light of the overwhelming

evidence of guilt, we conclude that in a new trial these two

pieces of evidence would not “probably produce an acquittal.”

See id.

Accordingly, we affirm the judgments of conviction.