United States v. Santiago Pena-Espinoza

REINHARDT, Circuit Judge,

dissenting:

The district court allowed testimony by law enforcement agents in which they summarized critical wire-tapped conversations to which they were not a party. Such a practice is both unprecedented and indefensible. Accordingly, I dissent.

I.

I note at the outset that the majority rests its affirmance on a narrow view of what this case requires us to decide. The majority concludes that the district court’s ruling only authorized the government to introduce “factual condensation^] of the transcripts’ contents.” Ante at 360. Therefore, according to the majority, the defendant’s objection to the ruling preserved only the issue whether “factual condensations” were admissible. The majority then concludes that the defendant never properly objected to the nonfactual testimony offered by the agents.

As a result of its narrow construction of the district judge’s ruling and the defendant’s objection, the majority reviews the admission of different portions of the agents’ testimony under different standards of review. It reviews the admission of the agents’ “factual condensations” for an abuse of discretion. In contrast, it reviews the remainder of the agents’ non-factual testimony only for plain error.

I believe that the majority’s interpretation of the district court’s ruling places the vast bulk of the agents’ testimony beyond the scope of the ruling. The majority itself suggests as much when it states that the agents’ summaries “actually did much more than provide a factual summary.” Ante at 360. Unsurprisingly, a review of the agents’ testimony confirms that only a small portion of it can fairly be characterized as consisting of factual summations of the transcripts.

During most of their testimony, the agents purported to summarize the conversations directly. At those points, the agents were not simply providing factual summations of the transcripts. Instead, they were describing conversations about which they had no factual knowledge based solely on their opinions that the transcripts were accurate. It does not appear that the majority means to deem such unqualified opinion testimony to be within the scope of its construction of the district court’s ruling.

More important, throughout their testimony the agents made subjective assessments of the relevance of certain conversations. In particular, when Agent Frazier informed the jury of the “pertinent” parts of the conversations, he acted as far more than a reporter or condenser of the contents of the transcripts. Instead, he played the role of commentator. *363 Analysis of the pertinence of evidence is a function of jurors, not witnesses. Although the majority does not define what it means by “factual condensations”, relevancy determinations clearly fall within the majority’s description of the non-faetual testimony that it concedes “might well have been an abuse of discretion, usurping the jury’s function and prejudicing Pena-E spinoza’s case.” Ante at 360.

Because under its construction of the district court’s ruling most of the agents’ testimony must be deemed to have been admitted without objection, the majority decides only that the admission of most of the summary testimony did not constitute plain error. It also holds that the admission of the small amount of testimony that could be called “factual condensations” had no effect on the verdict in this case and thus did not constitute reversible error.

These narrow holdings permit the majority to uphold Pena-E spinoza’s conviction. However, the court’s opinion does not answer the more general question whether a district court abuses its discretion when it permits law enforcement agents to summarize conversations to which they were not a party.

II.

Despite the limited nature of the majority’s holding, I am compelled to dissent. My disagreement stems from my conclusion that the majority’s highly limited view of the scope of the district court’s ruling is improper. To me, it is clear that the ruling in question was not meant to be limited to the mechanical rendering of excerpts from the transcripts; certainly, the defendant’s objection was not. He intended to object to the entire process.

The district court itself never used the phrase “factual condensations” in describing the scope of its ruling. That restrictive description of the ruling is one wholly of the majority’s creation. It is premised on the assumption that there exists some species of summaries that consist merely of “factual condensations”. However, the majority’s categorization of the evidence is both artificial and highly unrealistic. Summaries are never simply factual condensations. They necessarily reflect “interpretations and opinions” of the evidence being summarized. Ante at 860. When the district court authorized the agents to summarize the “contents” of the transcripts, it unquestionably permitted them to introduce the subjective descriptions and characterizations of the conversations to which they testified.

Thus, I believe that the majority is wrong to review the bulk of the agents’ testimony under the plain error standard of review. Although in my view the admission of the agents’ testimony would, if not objected to, constitute’ plain error, I believe that the defendant did object to the introduction of all the testimony when he objected to the district court’s ruling, and that in fact the ruling applied to the testimony in its entirety. Accordingly, I explain below why I conclude that the district court abused its discretion in permitting the agents to testify as they did.

III.

The plain fact is that there is no precedent for the admission of summaries such as those used in this case. The lack of precedent is hardly surprising. We have long recognized that tape recordings constitute the “actual evidence of the conversations.” United States v. Tomabene, 687 F.2d 312, 317 (9th Cir.1982); see also Federal Rules of Evidence 1002 (stating that “[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required”). As a result, we have held that even word-for-word transcripts are admissible only under certain conditions. United States v. Taghipour, 964 F.2d 908, 910 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 283 , 121 L.Ed.2d 210 (1992); United States v. Booker, 952 F.2d 247, 250 (9th Cir.1991); Tomabene, 687 F.2d at 317 .

Before admitting transcripts into evidence, we have considered both whether the trial judge has reviewed them for accuracy, Booker, 952 F.2d at 250 , and whether the parties have stipulated to their fidelity to the tapes, Taghipour, 964 F.2d at 910 . We have also looked at whether a government agent who participated in the taped conversation has testified to the reliability of the transcripts. *364 United States v. Gonzales-Benitez, 537 F.2d 1051, 1054 (9th Cir.1976) (holding that in the absence of the actual tapes, “testimony by the participants .,. [may be] sufficient to establish what was said.”) (emphasis added).

Moreover, we have noted the importance of reminding the jurors of the primacy of the tapes, United States v. Armijo, 5 F.3d 1229, 1234-35 (9th Cir.1993); United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 824 (9th Cir.1985) (same), and we have suggested that a judge should instruct the jury to resolve discrepancies between the tape and the transcript in favor of the tape, see Booker, 952 F.2d at 249 . We have noted the value of such limiting instructions even when the taped conversations took place in Farsi, a language incomprehensible to most jurors. See Taghipour, 964 F.2d at 910 & n. 2.

Given the safeguards that we have delineated for the admission of transcripts of tapes, I do not understand how summaries of transcripts could be admitted without similar constraints. Verbatim transcripts are likely to provide far more accurate renderings of conversations than are summaries. Moreover, as the childhood game of “telephone” well demonstrates, words change significantly in the course of their re-telling by third parties. There is simply no way to summarize the contents of a transcript without offering to some degree a subjective view of their meaning and import. Indeed, we have previously noted that when a witness summarizes the underlying evidence it “lends that witness’ credibility to that evidence and may obscure the jury’s original evaluation of’ it. United States v. Baker, 10 F.3d 1374, 1412 (9th Cir.1993). For that reason, I do not believe that district courts have the discretion to admit testimony of the type at issue here. Nor, for the reasons I have explained, do I read the majority opinion as holding that they do.

The form that the summaries took in this case demonstrates the problems that result from admitting testimony in the form of summaries of recorded telephone conversations. Each witness testified as if his testimony were based on personal knowledge, even though it was not. Thus, each agent assumed the dual role of fact and opinion expert. “[T]his intermingling of the two roles increased the possibility that the jurors would not distinguish” between those statements that were opinion and those that were not. United States v. De Soto, 885 F.2d 354, 360 (7th Cir.1989) (describing the risks presented when a police officer testifies as both an expert and an eyewitness).

The fact that neither witness had ever been qualified to assume either role exacerbated the problems engendered by the dual nature of their summary testimony. The witnesses described conclusively what words were used in the conversations and which parties were speaking when. The government introduced the witnesses’ testimony without first showing that either one had listened to the tapes, recognized the voices on them, or played any role in preparing the transcripts. United States v. Rengifo, 789 F.2d 975, 983 (1st Cir.1986) (describing requirements for witness to qualify as an expert in translation of recordings). Moreover, Agent Frazier characterized certain words as being drug-related despite the lack of any foundation for such testimony. Cf. United States v. Borrone-Iglar, 468 F.2d 419, 420-21 (2nd Cir.1972) (considering whether witness was qualified to characterize the meaning of narcotics vernacular). In short, the law enforcement witnesses here did not “perform an essentially mechanical task” in providing the summaries. Rengifo, 789 F.2d at 983 . Instead, I believe that their testimony “change[d] the essential nature of the transcript evidence” by enhancing its credibility and altering its meaning. Id.

I note finally that I disagree with the majority as to whether the admission of the objected-to testimony constituted reversible error. I think that we must examine each agent’s testimony in its entirety. There is simply no way to isolate “factual condensations”. Even if there were, none was suggested here. The admission of the agents’ testimony clearly prejudiced the defendant. The “summaries” provided the jurors with unqualified but seemingly authoritative opinion as to the contents, meaning, and significance of crucial conversations. Given the large number of transcripts involved, it is clear that the testimony provided the jurors *365 with the most readily accessible description of the conversations. Because I believe it is likely that the jurors relied on the summaries in concluding that the conversations were incriminating, and because I believe that the district court abused its discretion in admitting those summaries, I conclude that we are required to reverse the convictions. Accordingly, I dissent.