                                                                               United States Court of Appeals
                                                                                        Fifth Circuit
                                                                                      F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                        June 25, 2007
                                 FOR THE FIFTH CIRCUIT
                                                                                  Charles R. Fulbruge III
                                                                                          Clerk
                                          No. 05-11240



UNITED STATES OF AMERICA,
                                                                            Plaintiff-Appellee,

                                              versus

SERGIO BALDERAS; RICHARD CHUNG,

                                                                           Defendants-Appellants.




                          Appeal from the United States District Court
                              for the Northern District of Texas
                                        3:04-CR-205-2




Before JOLLY, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

       Richard Chung and Antonio Balderas were involved in two separate drug rings in the Dallas,

Texas area. Both were convicted of drug and money laundering conspiracies in a single trial and now

appeal on multiple grounds. We affirm.

       Balderas first contests the sufficiency of the evidence to support the conspiracy and money

laundering convictions. In reviewing a challenge to the sufficiency of the evidence where the

*
 Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
defendant properly moved for a judgment of acquittal, this court views all evidence in the light most

favorable to the verdict to determine whether a rational trier of fact could have found that the

evidence established the essential elements of the offense beyond a reasonable doubt. United States

v. Carrion-Caliz, 944 F.2d 220, 222 (5th Cir. 1991). In conducting this review, we accept all

credibility choices and reasonable inferences made by the jury, and the standard remains the same

whether the evidence is direct or circumstantial. United States v. Nixon, 816 F.2d 1022, 1029 (5th

Cir. 1987).

       The testimony of a co-conspirator - that he saw Balderas open a hidden compartment and

remove cocaine - alone is enough to sustain Balderas’s conviction for the drug conspiracy. The

government introduced additional evidence of phone calls between Balderas and two other co-

conspirators that also establishes guilt. A rational jury could have found Balderas’s guilt beyond a

reasonable doubt.

       As to the money laundering count, Balderas relies on United States v. Cuellar, 441 F.3d 329

(5th Cir. 2006), rev’d en banc, 478 F.3d 282 (5th Cir. 2007), as his brief was submitted before the

court released its en banc decision. As the government correctly points out, the en banc court’s

decision in Cuellar supports Balderas’s conviction for money laundering. The evidence was sufficient

to support the jury’s guilty verdict on both counts.

       Next, Balderas argues that the district court erred in admitting transcripts of phone

conversations. These conversations were in Spanish, and the government also introduced English

translations in transcript form. These translations not only included what was said but also identifed

each speaker. This court reviews a district court’s evidentiary rulings for abuse of discretion. United

States v. Gutierrez-Farias, 294 F.3d 657, 662 (5th Cir. 2002).


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        First, Balderas argues that a proper foundation was not laid for the admission of the English

translation of conversations that took place in Spanish because the actual translator did not testify to

their accuracy. While some testimony is necessary to establish the accuracy of the translation, Ignacio

Arandas, even though he did not personally translate the recordings, testified to listening to every

conversation and checking the accuracy of the translations. This satisfies the government’s burden

of producing evidence that is “sufficient to support a finding that the matter in question is what its

proponent claims.” FED. R. EVID. 901(a). The district court was within its discretion to accept

Arandas’s testimony as a proper foundation for admitting the transcripts and translations.

        Second, Balderas argues that the district court improperly admitted expert testimony on voice

identification. A voice exemplar was made of Balderas during the investigation, and Arandas testified

that after listening to the voice exemplar, he could identify the person on the recordings of phone

conversations as Balderas. This is not expert testimony and does not require any special foundation

beyond establishing that the person is familiar with the voice they are identifying. FED. R. EVID.

901(b)(5). The district court’s evidentiary rulings were not in error.

        Next, Balderas argues that his joint trial with Chung was unfair because much of the evidence

presented at trial had nothing to do with Balderas. Balderas’s attorney did not move for severance.

If a defendant fails to move for severance at trial, the issue is considered waived. United States v.

Mann, 161 F.3d 840, 862 (5th Cir. 1998).

        Alternatively, Balderas argues that his trial counsel was ineffective for failing to move for

severance at trial and/or to request a limiting instruction be given to the jury. “[I]neffective assistance

claims cannot be resolved on direct appeal unless adequately raised in the district court.” United

States v. Fierro, 38 F.3d 761, 774 n.6 (5th Cir. 1994) (citing United States v. McCaskey, 9 F.3d 368,


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380 (5th Cir. 1993)). While this rule may sometimes be waived “when the record [provides]

substantial details about the attorney’s conduct,” United States v. Bounds, 943 F.2d 541, 544 (5th

Cir. 1991), there was no such record development in this case, rendering the claim premature.

        Finally, Balderas argues that the prosecution was allowed free rein in questioning Jose Rico,

a co-conspirator who cooperated with the government and testified against Balderas. The district

court allowed the government to ask leading questions after Rico testified to being unable to

remember certain details or to identify voices on a tape recording. Balderas argues that this

questioning also communicated the prosecution’s theory of the case to the jury during questioning.

Some leading questions are permissible when a witness is hostile. United States v. Sutherland, 463

F.2d 641, 650 (5th Cir. 1972). “Some reasonable latitude must be allowed the prosecuting attorney

in refreshing a witness’ recollection, particularly in dealing with a reluctant, if not necessarily hostile,

witness.” Gill v. United States, 285 F.2d 711, 713 (5th Cir. 1961). We find no error here where the

government was questioning a reluctant witness.

        Chung asserts three arguments on appeal. First, Chung argues that his trial violated both the

Speedy Trial Act and the Sixth Amendment. Three hundred fifty-four days passed between the

unsealing of the indictment and the beginning of trial, more than the seventy days allowed by the

Speedy Trial Act. See 18 U.S.C. § 3161(c)(1). The district court’s exclusions of time were properly

granted to Chung’s co-defendants, and there was no violation of the Speedy Trial Act. See United

States v. Bieganowski, 313 F.3d 264, 281 (5th Cir. 2002) (“Thus, the Act excludes from the

calculation of the seventy-day limit any delay resulting from the proper grant of a continuance

requested by a co-defendant.”). The court in this case appropriately entered written findings that the

case was complex and that continuances were necessary in the interests of justice when requested by


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Chung’s co-defendants. Accordingly, Chung’s trial did not violate the Speedy Trial Act.

       Typically, in this Circuit, a delay of one year is needed to trigger a speedy trial analysis under

the Sixth Amendment. Robinson v. Whitley, 2 F.3d 562, 568 (5th Cir. 1993). Because the delay in

this case was not greater than a year, this court need not consider this challenge. Even if the Barker

factors were considered, Chung has made no showing of prejudice, United States v. Tannehill, 49

F.3d 1049, 1054 (5th Cir. 1995), or any showing that a delay was clearly attributable to the

government, United States v. Harvey, 897 F.2d 1300, 1303 (5th Cir. 1990). Therefore, there are no

grounds for a Sixth Amendment challenge in this case.

       Second, Chung argues that he went to trial only to preserve his Speedy Trial Act claim and

therefore should have been afforded the acceptance of responsibility reduction under the Sentencing

Guidelines. However, at trial, his attorney moved for an instructed verdict of not guilty, thereby

challenging the government’s substantive case at trial. United States v. Fells, 78 F.3d 168, 171 (5th

Cir. 1996) (“Normally, one who puts the government to its burden of proof at trial will not qualify”

for a reduction for acceptance of responsibility.). Therefore, Chung was not entitled to the sentencing

reduction.

       Third, Chung argues that his sentence was increased on the basis of state convictions that had

been dismissed. Based on these convictions, Chung moved from criminal history category I to II,

increasing his imprisonment range from 292 to 365 months to 324 to 405 months. He was sentenced

to 324 months’ imprisonment. The commentaryto the guidelines provides, “A number of jurisdictions

have various procedures pursuant to which previous convictions may be set aside or the defendant

may be pardoned for reasons unrelated to innocence or errors of law . . . . Sentences resulting from

such convictions are to be counted. However, expunged convictions are not counted.” U.S.S.G. §


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4A1.2, Application Comment 10.

        Expungement is not automatic under South Carolina law; rather, even after charges are

dismissed, the defendant must file a motion to expunge his record, even if the conviction was

overturned on the basis of innocence. S.C. Code Ann. § 22-5-920; see also S.C. Code Ann. § 17-1-

40; State v. Fairey, 2007 WL 1120525, *3, * 8 (S.C. Ct. App. 2007). Chung has not shown that his

prior convictions were dismissed on the basis of innocence or errors of law or that they were

expunged under South Carolina law. Therefore, the district court did not err in increasing his

sentence based on these convictions.

        None of the defendants’ claims are meritorious. We affirm the district court on all challenges

asserted in this case.




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