RICARDO GARCIA, PETITIONER V. UNITED STATES OF AMERICA No. 89-6186 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The order of the court of appeals (Pet. App.) affirming petitioner's conviction is reported at 888 F.2d 1395 (Table). JURISDICTION The judgment of the court of appeals was entered on September 28, 1989. The petition for a writ of certiorari was filed on November 27, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court abused its discretion when it precluded a linguistics expert from testifying as a defense witness that petitioner spoke only Spanish, not English. 2. Whether the district court erred in refusing to compel the government to disclose the identity of a confidential informant. 3. Whether the district court abused its discretion when it admitted testimony concerning references to other criminal conduct made by petitioner during conversation with an undercover agent. STATEMENT After a jury trial in the United States District Court for the Southern District of Florida, petitioner was convicted of conspiracy to distribute at least 500 grams of cocaine, in violation of 21 U.S.C. 846, and of distribution of at least 500 grams of cocaine, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. /1/ Petitioner was sentenced to concurrent terms of five years' imprisonment and to a four-year term of supervised release. The court of appeals affirmed without opinion. Pet. App. 1. On August 11, 1987, DEA undercover agent Peter Sarron -- posing as "Pete," an Italian from New York -- was introduced to petitioner and petitioner's son-in-law, Reinaldo Farina, by a confidential informant. Petitioner, speaking in English, remarked that he had many good Italian friends and that Italians were "very good people to do business with." Tr. 23-28, 33-34. Agent Sarron said he understood that petitioner had some "things" that he, Sarron, was interested in buying. Petitioner responded affirmatively, looked at Farina, and said, "We have a very good friend who has 27 of those things you want." Agent Sarron said he wanted twenty of those "things," and petitioner replied that he would be able to get them from a friend who had a shop nearby. Tr. 33-34. However, petitioner rebuffed Agent Sarron's suggestion that they make a deal for the delivery of twenty kilograms of cocaine. Instead, petitioner stated that the initial transaction should involve only five kilograms, and translated Farina's comment that they did not know Agent Sarron very well. Tr. 43. When Agent Sarron complained about the quoted price of $17,500 for "each one of these (things)," petitioner spoke in Spanish to Farina and then told Agent Sarron that he would have to negotiate the price with "(their) man." Tr. 35. Farina decided to telephone his friend, the source of the cocaine. Meanwhile, Agent Sarron said that he made a lot of money selling marijuana in Texas and that he imported marijuana from Colombia on his shrimp boats. Petitioner replied that he had lived in the Texas and Louisiana area, and that he had frequently worked as a captain on boats used to transport marijuana from Colombia to the United States. Tr. 43-44. Petitioner asked if he could be one of Agent Sarron's boat captains and displayed his bare feet to back up his claim that he had gone barefoot on boats for many days. Tr. 46-47. Farina then returned from making the telephone call; however, the transaction had to be postponed when the source of the cocaine failed to arrive at the meeting place as expected. Tr. 48-49. /2/ The next day, Agent Sarron and the informant returned to the restaurant where they had met petitioner and Farina. After talking briefly with them, Agent Sarron met with Carlos Fernandez, the source of the cocaine. Tr. 50-52. They negotiated over the price for twenty kilograms; Fernandez, Agent Sarron, and the confidential informant then went next door to Fernandez's store. Co-defendant Sosa eventually arrived with the cocaine. But Fernandez, commenting that there were too many police in the area, then suggested that they go to his brother's house instead. Tr. 53-61. Sosa removed a brown bag containing 4.996 kilograms of cocaine from the trunk of his car and took it into Agent Sarron's car. Sosa, a woman accompanying him, the confidential informant, and Agent Sarron followed Fernandez's car to a house a few miles away. Tr. 60-61, 182. There, after testing and approving the cocaine, Agent Sarron gave the informant the keys to the trunk of his car, purportedly to get the money for the cocaine. The informant went outside as arranged to signal the surveilling agents; the police immediately arrested the occupants of the house. Tr. 76-78, 80. When he was arrested, petitioner, pointing at Agent Sarron, said in English, "You should arrest him. * * * He is the marijuana smuggler." Tr. 85-86, 156-175. 2. At trial, petitioner testified in his own defense through an interpreter. He acknowledged that he had lived in the United States for almost eight years, but denied that he couls speak English. /3/ Tr. 365-366. He claimed that he had spoken to Agent Sarron through two interpreters, and that they had discussed fishing, not drugs. Tr. 363. He denied introducing Agent Sarron or the confidential informant to Carlos Fernandez. Tr. 366. Petitioner sought to call a linguistics expert, Professor R. Scott Baldwin, to support his claim that he could not speak English. Tr. 291-312. In a hearing outside the presence of the jury, Baldwin testified that he had administered a battery of tests to petitioner to determine his proficiency in the English language. Tr. 294-295. Based on the results, Baldwin believed that petitioner's English proficiency was "extremely primitive" and that petitioner could not have engaged in the conversations attributed to him by Agent Sarron. Tr. 298, 307-308. On cross-examination, however, Baldwin admitted that he had never done any studies on how to determine whether someone was faking ignorance of a language, and that he was not aware of any such studies. He also admitted that the English proficiency tests he had given petitioner after his arrest were not designed to measure deception, and that he had quickly devised his own means of measuring it by scrambling the components of the tests so as to alter their expected progression from simple to difficult. Tr. 302; see also Tr. 296-297. The district court found that Baldwin's testimony would not assist the jury in determining whether petitioner spoke English because the tests that Baldwin had administered could not measure the language skills of a person who feigned a lack of proficiency. Therefore, the court disallowed the testimony. Tr. 310. In response to an objection at trial, the district court also determined that Agent Sarron's testimony about his conversation with petitioner concerning marijuana smuggling was admissible. Tr. 44-46. The district court cautioned the jury that the testimony applied "(i)n so far as knowledge and intent" on the part of petitioner, not his co-defendants. Tr. 44. ARGUMENT 1. Petitioner renews his contention (Pet. 14-19) that the district court erred when it precluded a linguistics expert from testifying that, in his opinion, petitioner could not speak English. This claim is without merit. It is well settled that a trial judge has broad discretion to exclude or admit expert testimony, and his ruling will not be reversed on appeal unless it is manifestly erroneous. Salem v. United States Lines Co., 370 U.S. 31, 35 (1962). As petitioner concedes (Pet. 17), the courts of appeals have generally upheld the exclusion of expert testimony in the field of linguistics. See, e.g., United States v. Aguon, 851 F.2d 1158, 1171 (9th Cir. 1988) (en banc); United States v. DeLuna, 763 F.2d 897, 912 (8th Cir.), cert. denied, 474 U.S. 980 (1985); United States v. Schmidt, 711 F.2d 595, 598-599 (5th Cir. 1983), cert. denied, 464 U.S. 1041 (1984); see also United States v. Hearst, 563 F.2d 1331, 1349-1350 (9th Cir. 1977), cert. denied, 435 U.S. 1000 (1978). The same conclusion is warranted here. Dr. Baldwin tested petitioner's English skills only after petitioner had been arrested, i.e., only after he had a motive to feign an inability to speak the language. Furthermore, as Dr. Baldwin acknowledged, he had never done any studies on how to detect such deception; nor was he aware of any such studies. The proficiency tests he gave petitioner did not measure deception, and there is no indication that his makeshift modification of the tests was sufficient to transform them into reliable indicators of petitioner's truthfulness. Whether or not petitioner spoke English was essentially a credibility issue that the jury was fully capable of deciding based on its own commonsense evaluation of the parties' testimony. See, e.g., United States v. Cipriano, 493 F.2d 26 (5th Cir. 1974). At best, Baldwin's testimony would have wasted time and been cumulative, since petitioner and his daughter both testified that he could not speak English -- testimony that was underscored by the fact that petitioner testified through an interpreter. At worst, Baldwin's testimony might have confused and misled the jury. Thus, even if relevant, it was excludable. Fed. R. Evid. 403. Under these circumstances, the district court acted well within its discretion in disallowing the testimony. /4/ 3. Prior to trial, petitioner moved the district court to order the government to disclose the identity of the confidential informant, claiming that the informant's testimony was needed in order to contradict the testimony of Agent Sarron and because the informant had acted as an interpreter for petitioner. Tr. 10-11, 13-14. Based upon the government's proffer that disclosure would pose a serious danger to the informant, /5/ and that interviews of the informant revealed no conflict between his testimony and Agent Sarron's, the district court denied petitioner's motion. Tr. 11, 13-14, 190. After failing to persuade the court of appeals that the district court erred, petitioner renews his contention here. Pet. 19-23. The trial court, however, properly weighed the factors set forth in Roviaro v. United States, 353 U.S. 53 (1957), in determining that disclosure of the identity of the confidential informant was not required. There is no need for further review of that fact-specific determination. In Roviaro, this Court noted that there is "no fixed rule" as to when disclosure of the identity of a confidential informant is required. 353 U.S. at 62. Rather, "the 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." Ibid. That balance requires a trial court to assess "the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Ibid; see also McCray v. Illinois, 386 U.S. 300, 311 & n.11 (1967) (noting that Roviaro eschewed "absolute rule" requiring disclosure and established "the case-by-case approach"). In Roviaro, disclosure of the identity of the confidential informant was required because the informant had been "the sole participant, other than the accused, in the transaction charged" -- the illegal transportation of narcotics. 353 U.S. at 64. The two had been "alone and unobserved during the crucial occurrence for which (the defendant) was indicted." Ibid. The informant was the defendant's "one material witness"; he might have been in a position to know whether the defendant had been entrapped, or to raise doubt as to the defendant's identity. Ibid. Moreover, the informant was the only witness whose testimony might have shown that the defendant did not know that the package he was carrying contained narcotics. Ibid. In this case, by contrast, there is no reason to believe that the informant's testimony would have been essential, or even helpful, to petitioner's defense. The record shows that the informant simply arranged and was present for the meetings between petitioner, his co-defendants, and Agent Sarron. The informant did some translating for Agent Sarron, as did petitioner himself, but there is no evidence that the informant was involved in the substantive negotiations over the price, amount, or delivery of the drugs. To the contrary, the government proffered, based on its interviews with him, that the informant's testimony was not inconsistent with Agent Sarron's testimony and, in fact, tended to incriminate petitioner. Tr. 11. /6/ Petitioner presented his defense -- that he did not speak English and did not discuss drugs with Agent Sarron -- through his own testimony and his daughter's. Consistently with his co-defendant Farina's testimony that Farina had not negotiated the drug deal and did not know of any involvement by petitioner (Tr. 352-353, 357), petitioner testified that he did not introduce Agent Sarron to Carlos Fernandez or broker the drug deal. Thus, even assuming the unlikely possibility that the informant's testimony would have corroborated petitioner's story, the prospect of eliciting merely cumulative testimony from an informant does not justify disclosure of his identity. /7/ See, e.g., United States v. Sai Keung Wong, 886 F.2d 252, 256 (9th Cir. 1989); United States v. Toombs, 497 F.2d 88, 93-94 (5th Cir. 1974). That is especially the case here, where any need for disclosure was outweighed by the danger to which disclosure would have exposed the informant whose house, shortly after the arrest of the defendants, had been cased by a person with an extensive arrest record including conspiracy to murder an informant. In short, given that the safety of the informant had been threatened and that his testimony was of dubious worth to petitioner, the trial court did not abuse its discretion in denying the motion to disclose his identity. 3. Petitioner lastly argues (Pet. 23-29) that the testimony concerning his prior importation of marijuana from Colombia and his desire to captain one of Agent Sarron's smuggling boats was inadmissible under Fed. R. Evid. 404(b), which bars "other crimes" evidence when offered to prove criminal propensity. This fact-bound contention that the district court abused its discretion in admitting testimony does not warrant review by this Court. The testimony concerned statements that petitioner himself had made about similar drug-related matters during his drug negotiations with Agent Sarron. Statements do not constitute "other crimes" evidence within the meaning of Rule 404(b), if they concern offenses inextricably intertwined with the evidence of the charged offense or if they are necessary to complete the story of a crime at trial. See, e.g., United States v. Weeks, 716 F.2d 830, 832 (11th Cir. 1983). /8/ These statements were clearly of such a kind, and were therefore admissible. Even if Rule 404(b) did apply to the statements, it did not bar their admission. See Huddleston v. United States, 108 S.Ct. 1496, 1500 (1988) (if offered for a proper purpose, "other crimes" evidence "is subject only to general strictures limiting admissibility such as Rules 402 and 403"). Rule 404(b) specifically states that "other crimes" evidence is admissible to prove, inter alia, intent and knowledge. Cases such as this one, where a defendant concedes presence but insists that there is an innocent explanation for his conduct, are classic examples of situations in which "other crimes" evidence is admissible to show intent and knowledge. See, e.g., United States v. Hitsman, 604 F.2d 443, 448 (5th Cir. 1979) ("Evidence of prior drug dealings is highly probative of intent to distribute a controlled substance, as well as involvement in a conspiracy."); United States v. Dunbar, 614 F.2d 39, 42 (5th Cir.) (evidence of conversation between defendant and undercover agent about possible future drug transactions admissible in prosecution for distribution of controlled substances), cert. denied, 447 U.S. 926 (1980). The statements made by petitioner revealed the developing trust between a drug seller and a potential buyer. They also contradicted petitioner's claims that he and Agent Sarron had discussed fishing, not drugs, and had done so through two interpreters, not in English. Further, they demonstrated petitioner's familiarity with drug trafficking. See, e.g., Hitsman, 604 F.2d at 488; Dunbar, 614 F.2d at 42. Thus, they referred to crimes similar to those charged, they were relevant (as required by Fed. R. Evid. 402), and they were offered for a proper purpose. /9/ The statements also passed muster under Fed. R. Evid. 403, since their probative value was not substantially outweighed by the danger of unfair prejudice. Petitioner's arguments (Pet. 27-28) on this score prove too much; they would bar the admission of any narcotics-related "other crimes" evidence altogether. The testimony here did not concern a heinous crime likely to incite the jury to an irrational decision. Nor did it suggest an improper basis, such as criminal propensity, for the jury's verdict. In any event, the district court cautioned the jury that they were to consider the testimony only insofar as it related to petitioner's knowledge and intent; the jury thus knew not to give the statements undue weight. In this context, the statements were properly admitted. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General VICKI S. MARANI Attorney FEBRUARY 1990 /1/ Petitioner was tried with co-defendants Reinaldo Farina, Jairo Sosa, and Ricardo Fernandez. Farina and Sosa were found guilty on both counts; Fernandez was found not guilty of conspiracy but guilty of distribution. Another co-defendant, Carlos Fernandez, pleaded guilty to both charges. Co-defendant Sosa filed a petition for certiorari (No. 89-5822) raising the same issue as petitioner with respect to disclosure of the identity of the confidential informant. That petition was denied on January 22, 1990. /2/ During the above discussion, petitioner and the confidential informant translated for Farina, who did not speak English, and for Agent Sarron, who did not speak Spanish. Petitioner spoke English well, and frequently translated Farina's Spanish into English for Agent Sarron. See e.g., Tr. 41-43, 90, 112, 114, 141-143. For example, at one point in the conversation, Farina said, partly in Spanish and partly in English, "Perico (a Spanish slang word for cocaine), Colombia. No Miami." Petitioner explained that Farina meant that the cocaine was produced in Colombia and not Miami. Tr. 41. /3/ Petitioner's daughter, testifying as a witness for her husband, Farina, also denied that petitioner could speak English. Tr. 317. /4/ Despite petitioner's contention to the contrary (Pet. 18), United States v. Villalta, 662 F.2d 1205 (5th Cir. 1981), cert. denied, 456 U.S. 916 (1982) is not on point. That decision dealt with the competency of an informant to testify, not with the admissibility of testimony by a linguistics expert. In Villalta, the court of appeals held that the jury would be able to judge the credibility of a witness claimed to have acted as a translator for the Spanish-speaking defendant; the court noted only that expert testimony on the witness's ability would also be presented to the jury. /5/ According to information received by the government, the informant's house had already been "cased" by Daniel Garcia, a relative of some of the defendants. Daniel Garcia had an extensive arrest record, including an arrest for conspiracy to murder an informant. Tr. 11-12, 201. /6/ Petitioner did not request the district court to conduct in camera proceedings for disclosure of the informant's identity or for production of the informant himself. Gov't C.A. Br. 29. Thus, petitioner's claim that the district court should have held a hearing on the matter (Pet. 20, 22-23) must be deemed waived. In any event, the district court did fully hear petitioner's claims and the government's reasons for nondisclosure, and exercised its discretion in light of that information. Tr. 10-14, 190. /7/ Petitioner claims (Pet. 21-22) that the testimony of the informant was necessary because Agent Sarron inconsistently attributed statements first to Farina and then to petitioner. However, Agent Sarron explained at trial that petitioner was translating for Farina -- so both co-defendants repeated the same statements in different languages. See Tr. 112, 143. /8/ See also, e.g., United States v. Tripp, 782 F.2d 38, 41 (6th Cir.) (card games within time frame of a gambling conspiracy were not "other acts" subject to Rule 404(b)), cert. denied, 475 U.S. 1128 (1986); United States v. DeLuna, 763 F.2d 897, 915 (8th Cir.) ("The rule limiting admissibility of uncharged misconduct does not shield an accused from the reception of evidence that he boasted of his past experience in crime in order to reassure a prospective vender or co-worker of his skill and reliability."), cert. denied, 474 U.S. 980 (1985); United States v. Tunsil, 672 F.2d 879, 880-881 (11th Cir.) (defendant's statement to agent that he had engaged in a drug deal the day before his arrest was admissible on res gestae theory, so long as not unduly prejudicial under Fed. R. Evid. 403), cert. denied, 459 U.S. 850 (1982); United States v. Aleman, 592 F.2d 881, 885 (5th Cir. 1979) (act is not "extrinsic" if the evidence used to prove it and the evidence used to prove the offense charged are "inextricably intertwined"). /9/ Petitioner does not contest that the jury could have made a finding from the evidence presented that he had committed the extrinsic offense.