In U.S. v. Curbelo, the defendant was convicted following a trial of conspiracy to manufacture and possess marijuana with intent to distribute in connection with his involvement with an indoor marijuana growing operation in Naples, Florida. He was specifically charged with conspiracy to manufacture and possess with intent to distribute 1,000 or more marijuana plants and conspiracy to distribute 100 or more kilograms of marijuana in violation of 21 U.S.C. §§841 and 846. The defendant was hired initially hired to work as a carpenter for Diaz, who offered the defendant the opportunity to work as a caretaker for one of his grow houses and received a percentage of the profit to supervise the house. Later, Curbelo became more involved as Diaz gave him opportunities to work on other grow houses. Eventually the DEA placed GPS tracking devices on vehicles used by Diaz but did not obtain a warrant. The DEA also obtained a court order to intercept Diaz’s cellular phone conversations and intercepted conversations with the Defendant and a coconspirator in which they discussed aspects of the marijuana growing operation.
At trial the government played recordings of the wiretaps on Diaz’s phone, which were in Spanish, so the government provided the jury with an English translation that had been prepared by translator but the government never identified who prepared the transcript. Instead the government used Diaz who was fluent in Spanish and English to establish the accuracy of the transcripts. The defendant objected at trial to the admission of the translations of the recordings without putting on the witness who made the translations. The defendant objected to the admission as a violation of the Sixth Amendment Confrontation Clause because he could not cross examine the person who translated the records. In resolving this issue the court of appeals had to decide if the transcripts contain statements that are testimonial and hearsay. It found the conversations themselves were not hearsay because Diaz testified ant the defendant’s statements may be admitted against him. Furthermore, the transcripts did not contain a certification by the translator as to the accuracy of the translations. The government merely presented the translations themselves and do not contain any hearsay statement by the translator. There were no express assertions by the translator that could be true or false, only an implicit statement that the translation was accurate. Diaz, who was a participant in the conversations, testified at the trial that based on his independent review of the transcripts and the recordings the English translations were accurate. The only statement the jury heard regarding the accuracy of the transcripts came from Diaz. Therefore, even if the translator made a testimonial statement out of court, she did not become a witness against the Defendant. Diaz testified based on his own judgment, that the translations were accurate.
GPS suppression issue waived.
The defendant also argued the GPS tracking evidence was obtained in violation of the Fourth Amendment relying on the Supreme Court’s decision in U.S. v Jones which held that attaching a GPS on an individual’s vehicle and subsequent use of that device to monitor movement on public streets constitutes a search or seizure within the meaning of the Fourth Amendment. The defendant waived this issue because he had not moved to suppress, and the court found no good cause to grant relief from the waiver because the defendant knew about the government’s use of the tracking device and did not challenge it before the district court.