
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1120                                    UNITED STATES,                                      Appellee,                                          v.                             HONORIO GONZALEZ-MALDONADO,                        a/k/a NORI, a/k/a JOHN DOE 94 CR360-3,                           a/k/a ONORIO GONZALEZ-MALDANDO,                                Defendant - Appellant.                                 ____________________          No. 96-1296                                    UNITED STATES,                                      Appellee,                                          v.                             GERMAN MONTALVO, a/k/a ITO,                              a/k/a JOHN DOE 94 CR360-2,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. H ctor M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Selya, Circuit Judge.                                         _____________                                _____________________               Jos  A. Pag n-Nieves, by appointment of the Court, with whom               ____________________          Jos   A. Pag n  Nieves Law  Offices, was  on brief  for appellant          ___________________________________          Honorio Gonz lez-Maldonado.               Judith H.  Mizner, with whom Ricardo  R. Pesquera-Annexy was               _________________            ___________________________          on brief for appellant Germ n Montalvo.               Lena  Watkins, Attorney,  with whom  John C.  Keeney, Acting               _____________                        _______________          Assistant  Attorney  General,  Theresa  M.B.  Van  Vliet,  Chief,                                         _________________________          Criminal  Division, Narcotic  and  Dangerous  Drug Section,  U.S.          Department of  Justice, and  Guillermo Gil, Acting  United States                                       _____________          Attorney, were on brief for appellee.                                 ____________________                                     May 30, 1997                                 ____________________                                         -2-                    TORRUELLA, Chief Judge.   Appellants Honorio  Gonz lez-                    TORRUELLA, Chief Judge.                               ___________          Maldonado ("Gonz lez-Maldonado") and German Montalvo ("Montalvo")          appeal  their  convictions  on  charges of  money  laundering  in          violation    of   18   U.S.C.         2,   1956(a)(1)(A)(i)   and          1956(a)(1)(B)(i)  and  conspiracy  to  possess  with  intent   to          distribute  five or more kilograms of cocaine, in violation of 21          U.S.C.    846.   For the  reasons stated herein  we vacate  their                                                              ______          convictions and remand to the district court.                    On appeal from a conviction, we review the facts in the          light  most favorable  to  the verdict.    See United  States  v.                                                     ___ ______________          Staula, 80 F.3d 596, 599 (1st Cir.), cert. denied, 117 S. Ct. 156          ______                               ____________          (1996).  On  that basis, the jury could  have found the following          facts.                    In the spring of 1993, the FBI began a money laundering          investigation.  An undercover FBI agent, Agent Mart n Su rez, and          an  informant infiltrated  a money  laundering organization  that          worked under  the direction of  a man known as  "Honcho."  Honcho          communicated to Agent Su rez and the informant that they would be          contacted through their pager, by a person using the code "Romero          55."    On May 24, 1994, Agent Su rez received a page from Romero          55 and contacted  him by phone.  Agent Su rez, the informant, and          Romero 55   -- who  was later identified  as Julio  Robles-Torres          ("Robles") -- arranged to  meet the following day, at  which time          Romero 55  delivered approximately  $600,000 to Agent  Su rez and          the informant.  The  conversation that took place at  the meeting                                         -3-          was  recorded,  although there  were  periods  when the  recorder          malfunctioned.                    At  trial,  the court  admitted the  taped conversation          into  evidence  over the  objection  of defense  counsel.   Agent          Su rez testified that during the interrupted portion of the tape,          Robles indicated that he  had started an individual named  "Papo"          in  "this business" and that  Papo had made  six million dollars.          Agent  Su rez testified that, in the context of the conversation,          he  interpreted "this business" to  mean the drug  business.  The          exchange  between Agent  Su rez  and government  counsel went  as          follows:                      Agent  Su rez:    I  recall  that  he had                      mentioned that  he  had started  Papo  in                      this  business.  He had -- also mentioned                      that Papo was in the car repair business.                      Government:  Okay.  When  you say that he                      started --  he, Robles, had  started Papo                      in that  business,  what business  is  he                      talking about?                      Agent Su rez:  In the drug business.          Tr. 2 at 278.                    During the taped conversation, Robles also stated  that          he had  given a lottery  ticket in  the amount of  $250,000 to  a          friend of Papo.   Agent Su rez testified that drug  smugglers buy          winning lottery tickets in order to launder  money.  There was no          mention  of  Montalvo  or  Gonz lez-Maldonado  during  the  taped          conversation.                    Based on the delivery  of $600,000 and the conversation          between  Agent Su rez and Robles, the government obtained a court                                         -4-          order authorizing  the interception of communications  on Robles'          cellular phone.   At trial,  the government introduced  more than          sixty  of these intercepted calls.  The government states that in          fifteen of those calls,  appellant Montalvo, identified as "Ito,"          spoke  with   Robles;  and  in   ten  calls,  Gonz lez-Maldonado,          identified as "Nori," spoke with Robles.                    On  June 27,  1994, FBI  Special Agent  Daniel Gonz lez          intercepted  a conversation between Robles and Papo.  During that          conversation,  Robles  and Papo  referred  to  "tickets."   Agent          Gonz lez,  over  objection,  testified  that  the  word  "ticket"          referred  to money.   Neither  appellant participated  in or  was          mentioned during the call.                    On June 28, 1994, six conversations were intercepted by          police.   The jury  could have concluded  that appellant Montalvo          participated  in one  of  these calls.    The first  call  was to          appellant   Gonz lez-Maldonado   at  his   store,   Mazda  Fever.          Gonz lez-Maldonado indicated that he had four tickets, and Robles          said that they could combine their tickets.                    Based  on  these  calls,  another  FBI  Special  Agent,          Michael Plichta, set up surveillance at Mazda Fever.  He observed          Robles arrive in a gray Volvo  around 4:00 p.m., on June 28, meet          briefly with an  unidentified male, and  then drive around  back,          where  he remained, out  of sight, for  twenty minutes.   At 4:20          p.m., an individual identified only as "Chepe" called Robles, who          stated that he was picking up the tickets at that moment and that          he would proceed to  deliver them.  When Robles  departed, he was                                         -5-          followed to a Ponderosa restaurant, where he met briefly with two          men.   Shortly thereafter, the two men were detained and $715,309          was  seized from a  suitcase and a  cardboard box  found in their          car.      The following day, Papo  and Robles had three telephone          conversations about  the seizure,  including the question  of who          would assume responsibility for the lost money.                    In  recorded conversations  on  July  8,  1994,  Robles          confirmed with Montalvo and an individual identified as "Gurucho"          that Gonz lez-Maldonado had all the tickets.  In his conversation          with  Gurucho,  Robles  indicated  that  Gurucho  should  contact          Gonz lez-Maldonado  about a delivery.   Gonz lez  informed Robles          that  Gurucho  had  directed  them  to  make  a  delivery  to  an          individual identified as "Nina" at the Condado Plaza Hotel.                    On July  9, 1994,  the FBI established  surveillance at          the  Condado  Plaza  Hotel.    FBI  Special  Agent  Jane  Peltier          testified  that  Robles  went to  Mazda  Fever  around 8:30  a.m.          Shortly after, he left  Mazda Fever and proceeded to  the Condado          Plaza Hotel parking garage, arriving around 9:00 a.m.  Carrying a          gray bag,  he went to the  eighth floor, and then  left the hotel          empty-handed.  FBI agents entered room 825 and recovered the gray          bag and seized $243,600 from the safe in the room.                    At the time of  Montalvo's arrest, police seized, among          other things, a  photocopy of  a Puerto Rico  lottery check,  two          pagers, and two notebooks.  In addition to Montalvo and Gonz lez-          Maldonado,  the police  arrested Robles.   The  three were  to be                                         -6-          tried together until, in March 1995, Robles was found incompetent          to stand trial and the case against him was severed.                    Appellants assert  several claims  on appeal.   We find          some  of   those  claims   valid,  warranting  reversal   of  the          convictions.   In order to give  as much guidance as  possible to          the district court, we also discuss some of the other claims that          are likely to resurface if there is a new trial.                   I.  The Psychiatric Testimony of Dr. Jos  Fumero                   I.  The Psychiatric Testimony of Dr. Jos  Fumero                    Appellants  argue  that  the district  court  erred  in          excluding the testimony of Dr. Fumero, the psychiatrist who  had,          at   the  court's  direction,   initially  examined   Robles  for          competency.  This claim includes two distinct arguments.   First,          appellants  claim that the court  erred in excluding Dr. Fumero's          testimony after defense counsel had  relied on an earlier  ruling          that the testimony would  be allowed.  Second, appellants  assert          that the court's decision to exclude Fumero's testimony was based          on the mistaken  belief that  the testimony was  offered only  to          address the issue of Robles' competency as a witness.  Appellants          contend that the testimony was actually offered to:                      provide  information  concerning  Robles'                      medical   history   and   his   diagnosed                      schizophrenia,    and     the    possible                      ramifications  of   Robles'  illness  for                      evaluation   of   the   evidence  to   be                      introduced   at   trial  --   to  provide                      information  relevant  to  whether, as  a                      result  of his  mental disease  or defect                      Robles  was  unable  to   appreciate  the                      nature and quality or wrongfulness of his                      acts  in  May-June,   1994;  or   whether                      aspects of  his illness were  relevant to                      assessing the reliability and  meaning of                      Robles' statements.                                         -7-          Brief  of Appellant Montalvo, at 17.   We deal with each claim in          turn.                    A.  Opening Statements                    A.  Opening Statements                    Prior to  trial, defense  counsel met with  Dr. Fumero,          who had conducted the competency  examination of Robles.   Fumero          opined that Robles was suffering froma mental illness at the time          of  the  offenses  and that  his  mental  illness  resulted in  a          tendency  to exaggerate.  Defense counsel informed the court that          he  intended  to  have  Fumero testify  at  trial,  arguing  that          Fumero's testimony  should be  admitted  so that  the jury  could          determine the weight to be given to the taped conversations.  Tr.          1 at 7.  The court stated  that it would "let Dr. Fumero  testify          and then let that go to the jury."1  Tr. 1 at 21.                    During opening statements, counsel for  both defendants          made reference  to Robles' mental  state.  Counsel  for Gonz lez-          Maldonado promised the jury that he  would produce a psychiatrist          who   would  testify   that   a  person   in  Robles'   condition          "exaggerates,  and  that  everything   that  he  talks  about  is          greater."   Tr. 1 at 163.   Counsel for Montalvo,  in his opening          statement, stated:                      The  expert  selected   by  this   Court,                      Dr. Fumero, selected by this  Court, will                      come   here,  will  sit  there  and  will                      testify that during this conspiracy . . .                      Mr. Julio   Robles-Torres  was   mentally                      insane.  Therefore, you cannot trust him.                                        ____________________          1  Following opening statements, the court reiterated  its intent          to allow Dr. Fumero to testify.  "I said I would allow Dr. Fumero          to testify at trial."  Tr. 1 at 189.                                         -8-                      You  cannot  put much  attention  to what                      he's saying because he exaggerates.          Tr. 1 at 169.                    During the  presentation of defendants' case, the court          reconsidered  its earlier  decision and  decided that  Dr. Fumero          would  not be allowed to testify because the testimony would only          go to  the issue of Robles'  competency as a witness,  which is a          question for the court, and that evidence of a mental defect does          not render testimony inadmissible.  See Tr. 8 at 1506.                                              ___                    Appellants  argue that  even if Fumero's  testimony was          properly excluded, the court  committed reversible error by first          ruling that it would permit Fumero to testify and then, after the          close of the  government's case, ruling that his  testimony would          be excluded.                    In  Anderson v.  Butler, 858 F.2d  16 (1st  Cir. 1988),                        ________     ______          defense counsel, in his opening, told the jury that he would call          a  psychiatrist and a psychologist to show that the defendant had          no appreciation of what he had done.  Counsel subsequently rested          his case without calling the promised doctors, although they were          available.  On appeal, this  court held that the failure to  call          these witnesses amounted  to ineffective  assistance of  counsel,          stating that "little  is more  damaging than to  fail to  produce          important evidence that had been promised in an opening."  Id. at                                                                     ___          17.  "The  first thing the  ultimately disappointed jurors  would          believe,  in the absence of some other explanation, would be that          the doctors were  unwilling, viz.,  unable, to live  up to  their          billing.   This they  would not  forget."   Id.   "[T]he  jurors'                                                      ___                                         -9-          conclusion  would  remain  that  impartial experts  --  the  most          qualified witnesses -- would not testify as counsel had said they          would; in effect a contradiction of the favorable  lay witnesses,          much worse than if  he had not mentioned the  doctors initially."          Id.   Furthermore, "to promise  even a condensed  recital of such          ___          powerful  evidence,  and  then  not  produce  it,  could  not  be          disregarded as harmless.  We  find it prejudicial as a  matter of          law."  Id. at 19.                 ___                    The case at  bar raises similar concerns.   The opening          statements for the  defense included a promise to the jury that a          psychiatrist would testify to  the effect that Robles exaggerates          as a  result of his mental  illness.  Unlike in  Anderson, it was                                                           ________          the district court that prevented the defense from fulfilling its          promise to the jury.  Having obtained the  assurance of the court          that Dr.  Fumero would  be allowed  to  testify, defense  counsel          stated as much  to the jury.   When the  court later changed  its          mind and ruled that the expert would not be permitted to testify,          defendants were unable to produce the promised testimony.                    Like  the jury in Anderson,  the jury in  this case was                                      ________          likely to infer from defense counsel's failure to call Dr. Fumero          that he  was unwilling to testify  for the defense.   Nor was the          jury informed of the fact that it  was the court's ruling, rather          than the  defendants'  decision, that  kept  Dr. Fumero  off  the          stand. Although Anderson  concerned an ineffective assistance  of                          ________          counsel  claim, the  principle  behind Anderson  applies in  this                                                 ________          case.   A defendant's opening statement prepares the jury to hear                                         -10-          his  case.   If  the defense  fails  to produce  promised  expert          testimony  that is  critical to  the defense  strategy, a  danger          arises that the jury will presume that the expert is unwilling to          testify and the  defense is  flawed.  That  the defendant  should          suffer  this presumption because he  relied on a  prior ruling of          the trial court that  the same court later reversed,  rather than          because of  poor judgment on the  part of his own  counsel, in no          way changes the fact that the  presumption formed in the minds of          the jury  is prejudicial.   As we did  in Anderson, we  find that                                                    ________          promising to admit  this important evidence  and then failing  to          produce it is prejudicial as a matter of law in the circumstances          of this  case.    Following  Anderson, therefore,  we  find  that                                       ________          denying defendants the opportunity to have Dr. Fumero testify, in          light  of the fact  that the court's  decision on  the matter led          defense  counsel,  in  their  opening  remarks,  to  promise  the          expert's testimony to the jury, was reversible error.                    B.   The Admissibility of Dr. Fumero's Testimony                    B.   The Admissibility of Dr. Fumero's Testimony                    Appellants also  challenge the district  court's ruling          that  Dr.  Fumero's  testimony  is inadmissible.    On  appellate          review, "[a] district court's decision to admit or exclude expert          testimony  is entitled  to  great deference."   United  States v.                                                          ______________          Shay,  57 F.3d  126, 132 (1st  Cir. 1995).   We  will reverse the          ____          trial court's decision on this question only if "(1) the district          court based the decision  on an incorrect legal standard,  or (2)          we  have a 'definite  and firm conviction  that the  court made a                                         -11-          clear error of  judgment in the conclusion it  reached based on a          weighing of the relevant factors.'"  Id. (citations omitted).                                               ___                    Defendants' argument proceeds  as follows.  Dr.  Fumero          was a qualified  witness within  the meaning of  Federal Rule  of          Evidence 702, as the court  agreed.  Tr. 8 at 1483.  He proffered          to  the  court  that the  symptoms  of  Robles'  mental condition          include "verbosity;" "grandeza" ("[h]e  has to feel important and          the  center of  attention as  part of  his .  . .  fragmented ego          needs"), Tr.  8 at  1497; and  exaggeration.   Because defendants          faced criminal charges  based largely  on recorded  conversations          involving Robles,  and because the government  claimed that these          conversations demonstrated  the existence of  a drug  conspiracy,          the  weight placed on the taped conversations  by the jury was of          paramount importance.   Indeed, the defendants'  case was founded          on the view that  the recorded conversations were discussions  of          legitimate business dealings.   If  the jury  could be  convinced          that  Robles' testimony was  unreliable because he  had a medical          condition that  led him to exaggerate, it would be more likely to          believe  the  defense theory  that  they were  involved  in legal          business activity.                    The  district court ruled that Dr.  Fumero would not be          allowed to testify on the ground that "the fact that a person may          suffer a mental defect  or problem does not render  his testimony          inadmissible."  Tr.  8 at  1459.  The  court stated further  that          "[y]ou  cannot bring a  witness and  say, well,  this man  is not          telling the truth  or he can't tell  the truth."  Tr.  8 at 1465.                                         -12-          The court appears to have understood Dr. Fumero's testimony to be          related to the competency of  Robles:  "What I suggest to  you is          that we give to the jury a stipulation that Julio Robles had been          held not competent  to stand trial  at this time  but that he  is          being evaluated further."  Tr. 8 at 1466.                    It is well established that a witness' mental state can          be relevant to  the issue  of the witness'  credibility.   United                                                                     ______          States v.  Butt, 955 F.2d 77, 82 (1st Cir. 1992).  The competency          ______     ____          of a  witness to  testify is  a determination to  be made  by the          trial judge, but issues of credibility are for the trier of fact.          See United States v. Carroll, 105 F.3d  740, 743 (1st Cir. 1997);          ___ _____________    _______          United States v. Hyson, 721 F.2d 856, 864 (1st Cir. 1983).          _____________    _____                    The ability of parties to offer expert testimony on the          question  of  credibility  is  not, however,  unlimited.    "[A]n          expert's  opinion that  another witness  is lying or  telling the          truth is ordinarily inadmissible pursuant to Rule 702 because the          opinion exceeds  the scope of the  expert's specialized knowledge          and  therefore merely  informs the  jury that  it should  reach a          particular conclusion."   Shay,  57 F.3d  at 131.   On  the other                                    ____          hand,  "no constitutional  provision, law,  or rule  requires the          exclusion  of  expert  testimony  simply because  it  concerns  a          credibility  question."  Id.  To be admissible under Federal Rule                                   ___          of  Evidence 702,  a  proposed  expert  witness  must:    (1)  be          qualified  to   testify  as  an  expert   by  "knowledge,  skill,          experience, training, or education,"  Fed. R. Evid. 702;  (2) the          testimony  must   concern   "scientific,  technical,   or   other                                         -13-          specialized knowledge,"  Fed. R. Evid. 702; and (3) the testimony          must  "assist the trier of fact to  understand the evidence or to          determine a fact in issue."  Fed. R. Evid. 702.  Shay, 57 F.3d at                                                           ____          132.                    In  Shay, the  defendant,  Shay Jr.,  was convicted  of                        ____          "conspiracy and aiding  and abetting  an attempt to  blow up  his          father's car."  Shay, 57 F.3d at 128.  Shortly after the bombing,                          ____          he told a police officer  that "he was sorry about it  and wished          he  could turn  back the  hands of  time."   Id.   The government                                                       ___          argued that this  statement was evidence of Shay Jr.'s guilt.  As          part of his  defense, Shay  Jr. sought  to call  Dr. Phillips,  a          psychiatrist, to  testify that Shay  Jr. suffered  from a  mental          disorder known  as "pseudolog a fant stica."   The expert witness          was to testify  that this  illness caused Shay  Jr. to  fabricate          self-aggrandizing lies  that would  place him  at  the center  of          attention.   Id.  at 129-30.   The  district court  excluded this                       ___          testimony  on the ground that the jury was capable of determining          the reliability of Shay Jr.'s statements.                    The Shay  panel held that  expert psychiatric testimony                        ____          can  be  admitted in  appropriate  circumstances  to establish  a          witness' "character for truthfulness."  Id. at 131.  The  instant                                                  ___          case  is governed  by  Shay, and  our  analysis follows  the  one                                 ____          adopted there.                    Neither party challenges Dr. Fumero's qualifications as          an expert.  The proffered testimony  concerned the mental illness          of  Robles and  its impact  on his behavior  -- implying  that it                                         -14-          concerned "scientific, technical or  specialized knowledge."  The          remaining question is whether it would have assisted the trier of          fact to understand the evidence or to determine  a fact in issue.          The  question that a court  must answer in  determining whether a          proposed expert's  testimony  will assist  the trier  of fact  is          "whether  the untrained  layman would  be qualified  to determine          intelligently  and  to  the  best degree,  the  particular  issue          without enlightenment  from those having a  special understanding          of  the subject matter involved."  Id. at 132 (internal quotation                                             ___          marks  omitted).   Dr. Fumero's  testimony  would  have discussed          Robles' mental  illness.   Dr. Fumero  would have  testified that          Robles, as a result of his illness, was prone to exaggeration.                    Moreover, this  case has  a unique dimension.   Because          Robles  was incompetent  to testify,  the jury  did not  have the          usual chance to evaluate his demeanor.  Yet, the tapes containing          his statements were  introduced, and  they were  damaging to  the          defense.   In light of  the fact that  the government's  case was          heavily dependent  on  Robles' taped  conversations,  we  believe          that,  in these unusual circumstance, the testimony that he had a          mental   illness  that   led  to  "verbosity,"   "grandeza,"  and          exaggeration  was highly  relevant and  that an  untrained layman          would not  be qualified  to determine  intelligently, and to  the          best degree the weight to  place on Robles's recorded  statements          without enlightenment from Dr. Fumero.                    The  government  argues  that  Dr.  Fumero's  testimony          should  be disallowed  because  the taped  conversations featured                                         -15-          current actions  which were largely corroborated.   To the extent          that Robles did suffer from the mental illness at issue, however,          Dr. Fumero's  testimony could be  relevant to the  credibility of          current  statements.     The   defense  theory  is   that  Robles          exaggerated his situation in  statements that he made --  a claim          for which Dr. Fumero's testimony  is clearly relevant.  That  the          statements  were,  in the  view of  the government,  accurate, is          something for the jury to consider in its deliberations.  It goes          to the weight to be given to  the evidence and is not a reason to          exclude Dr. Fumero's testimony.                    We conclude,  therefore, that the  district court erred          in refusing to allow Dr. Fumero to testify.2                     II.  The Use of the Government's Transcripts                     II.  The Use of the Government's Transcripts                    A.  The Transcripts                    A.  The Transcripts                    Defendants also claim that  transcripts provided by the          government and used by  the jury should not have  been permitted.          The government provided transcripts of the taped conversations to          the jury so that when the tape was played, the  jury could follow          along  on the  transcripts.   The transcripts  included quotation          marks around certain words that the government claimed  were code          words used to  conceal the illegal  nature of the  conversations.          For  example, quotation marks  were placed  around words  such as          "ticket,"  which the  government claimed  referred to  money, and                                        ____________________          2   We need not engage in a harmless error analysis at this point          because we  are  reversing and  remanding  on other  grounds,  as          discussed in the preceding section of this opinion.                                         -16-          "accident,"  which allegedly  referred  to  arrest.   Defendants'          objection to these transcripts was overruled.                    This circuit  allows the use  of transcripts as  a jury          aid  to tape recording playback.   See United  States v. Carbone,                                             ___ ______________    _______          798 F.2d 21, 26 (1st Cir. 1986).  Where transcripts are used, the          judge should,  as was done  here, "make clear [to  the jury] that          the tapes, not the transcript, constitute  evidence in the case."          United  States v.  Richman, 600  F.2d 286,  295 (1st  Cir. 1979).          ______________     _______          Furthermore, we have stated that:                      Even if transcripts  are not admitted  in                      evidence, in the sense of being marked as                      exhibits, they are read and relied  on by                      the jury  to follow  the playback.   They                      should,  therefore,  be  as  accurate  as                      possible.          Carbone, 798 F.2d at 27.          _______                    The  quotation marks used  in the transcripts submitted          to the jury in this case  reflect the government's theory of  the          case.  The  government does not claim  that there is any  audible          emphasis or  other vocal  inflection placed  on the marked  words          that is discernible when  listening to the tape and  failed, both          at trial and on  appeal, to offer any legitimate  explanation for          the  quotation marks.   We  hold that  the trial  court committed          erred when  it  allowed the  use  of transcripts  that  contained          quotation marks around certain words.  It is not  enough that the          court  instructed the  jury  that only  the  tapes, and  not  the          transcripts,  were evidence.  Nor is it enough for the government          to subsequently present evidence that the words were  code words.                                         -17-          The government should not  be allowed to bolster its  argument by          customizing the transcript to reflect its own theory of the case.                    B.  The Agents' Interpretation of the Transcript                    B.  The Agents' Interpretation of the Transcript                    The next claim advanced by appellants is that the court          erred  when  it  allowed  FBI agents  to  interpret  the recorded          conversations.     Appellants'  briefs  fail  to  offer  detailed          descriptions  of the  incidents  to which  they object,  although          Gonz lez-Maldonado's brief cites to  seventeen incidents that are          generally  alleged to  represent occasions  on which  the agents'          interpretations  went  beyond   interpretation  of  code   words.          Although appellants objected on certain occasions, they failed to          object  on many  of the  instances cited  in Gonz lez-Maldonado's          brief.                    Although  expert  testimony  is permitted  in  order to          assist  the jury  in understanding  "code-like" conversations  in          tape recordings,  interpretations of clear conversations  are not          admissible.  See  United States  v. Montas, 41  F.3d 775,  783-84                       ___  _____________     ______          (1st  Cir. 1994); United States v. Lamattina, 889 F.2d 1191, 1194                            _____________    _________          (1st Cir. 1989).                      Expert testimony  on  a subject  that  is                      well   within  the  bounds  of  a  jury's                      ordinary experience  generally has little                      probative value.  On the other  hand, the                      risk  of unfair  prejudice is  real.   By                      appearing  to put  the expert's  stamp of                      approval on the government's theory, such                      testimony  might   unduly  influence  the                      jury's  own  assessment of  the inference                      that is being urged.          Montas, 41 F.3d at 784.          ______                                         -18-                    We are conscious of the fact that the interpretation of          alleged  code-words used by the defendants in a complex case such          as  this  may require  the expert  to  make statements  about the          context  in which those words  are being used.   Nevertheless, we          find that in some of the instances cited by appellants, the court          erred  by allowing  FBI  agents to  comment  on clear  statements          contained  on the  tapes.   Because  we  are reversing  on  other          grounds, we need not review each alleged transgression.  Instead,          we offer an example, in the  hope that such errors can be avoided          if there is another trial.                    At one  point Agent  Plichta observed, in  reference to          one of  the recordings, that  the participants in  a conversation          "appeared  relieved when they -- when they -- when they discussed          the fact that apparently they'd been able to make the delivery of          money  and nothing  happened.   They  were  both relieved  and  I          believe one  of them even chuckles a  bit about that."   Tr. 5 at          848.  That the speakers  on the tape were, or were  not, relieved          is for the jury to determine, and the testimony of the agent does          not assist them in this effort.                    III.  Spanish Definitions in Jury Instructions                    III.  Spanish Definitions in Jury Instructions                    Appellant Montalvo claims that the district court erred          in its instructions to  the jury.  Specifically, he  alleges that          the  court included in its  definition of the  term "willfully" a          Spanish translation that is inaccurate.                    In  delivering its instructions,  the court  stated the          following:                                         -19-                         The word "knowingly," as that term has                      been  used from  time  to time  in  these                      instructions, means that the act was done                      voluntarily  and  intentionally  and  not                      because of mistake or accident.  That is,                      "knowingly" means in Spanish a sabiendas.                                                   ___________                       The   word   "willfully"   --  that   is                      voluntariamente  in  Spanish  -- as  that                      _______________                      term has  been used from time  to time in                      these  instructions,  means that  the act                      was  committed voluntarily  and purposely                      with  the specific intent to do something                      the law forbids; that is to say, with bad                      purpose  either  to disobey  or disregard                      the law . . . .                         Now,   unlawfully    --   in   Spanish                      ilegalmente -- means contrary to law.                      ___________          Tr. 9 at 1704-05.                    Montalvo  argues  that   the  term  voluntariamente  is                                                        _______________          equivalent  to  the  English  term  "voluntary"  and,  therefore,          represents  only  one  aspect  of willfulness.    As  the English          definition suggests,  willfulness also  requires that the  act be          committed  purposely and with the intent to do something that the          law forbids.  See United States v. Yefsky, 994 F.2d 885, 899 (1st                        ___ _____________    ______          Cir.  1993).   We  conclude  that  Montalvo  is  correct  in  his          assertion that  the term voluntariamente means  "voluntary."  See                                   _______________                      ___          The  Collins Spanish-English  English-Spanish Dictionary  (2d ed.          1988).  It follows that the  use of this term in order  to assist          jurors,   whose  predominant   language   may   be  Spanish,   in          understanding the term "willfully" was ill-advised.   We need not          inquire into  the question  of whether  it  is reversible  error,          however, as we are reversing the judgment on other grounds.                                         -20-                    We add the following  note of caution.  Although  we do          not believe that there should be an absolute rule prohibiting the          use of non-English words when instructing the jury, we do believe          that this practice is inadvisable and should be discouraged.  The          English  meaning  of  the   word  "willfully,"  for  example,  is          adequately covered by an instruction such as those that have been          approved by this court in the past.  See, e.g.,  United States v.                                               ___  ____   _____________          Shadduck,  Nos. 95-1395, 95-1396,  96-1342, __  F.3d __,  1997 WL          ________          191877, at  *4 (April 24,  1997); Yefsky, 994  F.2d at 899.3   We                                            ______          therefore instruct  the district courts to  frame instructions in          English.                            IV.  The Admission of Evidence                            IV.  The Admission of Evidence                    A.   The Lottery Check                    A.   The Lottery Check                    At  trial, the  government  admitted  into  evidence  a          photocopy of a  1992 lottery  check seized from  Montalvo at  the          time of his  arrest.  The  check was in  the amount of  $250,000.          The government introduced the evidence because Robles revealed to          the undercover team that he had provided a winning lottery ticket          in the amount of $250,000 to a friend of Papo who, the government          claimed,  was in the drug  business.  That  appellant possessed a          check for the exact amount was, the government  argued, probative                                        ____________________          3  Reasonable proficiency  in teh English language is  a required          qualification  for a  juror.  See  28 U.S.C.    1865(b)(2) & (3);                                        ___          United  States v.  Aponte-Su rez,  905 F.2d  483,  492 (1st  Cir.          ______________     _____________          1990). That juries  understand English is also  a practical need.          The use of English is necessary for the  creation of an appellate          record  which will  be read by  appellate judges  who may  not be          versant in other languages, and who do not have the benefit of an          official translator as is available in district courts.                                         -21-          of his  involvement in the alleged conspiracy.   Furthermore, the          government  claims that  the fact  that the  check was  dated two          years before the events  described does not change the  fact that          it  was relevant because Papo  had worked with  Robles for a long          time and the check was offered  to demonstrate the existence of a          conspiracy long before the events of May through July 1994.                    Appellant  Montalvo  claims   that  the  check   lacked          relevance to the  case.  He claims that "[t]here  was no evidence          to  show  that the  ticket  had come  from  Robles,  that it  was          purchased  with  the proceeds  of  drug transactions  or  that it          evidenced Montalvo's involvement with Robles in drug distribution          at some earlier  time."  Brief of Appellant Montalvo,  at 32.  In          essence, appellant  contends that  there was nothing  to indicate          that  the  check  was evidence  of  any  element  of any  charged          offense.                    We add that, at sentencing, the  judge stated, "I don't          find  a  reasonable  connection  for  this  case  to  find  by  a          preponderance of  the evidence  that the $250,000  lottery ticket          that was purchased is part of this conspiracy, and therefore I am          excluding it."  Transcript of Sentencing, at 10.                    We  review  this  evidentiary   ruling  for  abuse   of          discretion.  United States  v. Brandon, 17 F.3d 409,  443-44 (1st                       _____________     _______          Cir. 1994).                    Our  review  of  the  testimony  fails  to  reveal  any          demonstrated connection  between the  photocopy of the  check and          the charges  brought  against defendants.    The check  was  from                                         -22-          before the  dates at issue in  this case and no  evidence was put          forward to  suggest that it  was connected to  drug transactions,          except the  general claim by  the government that  lottery checks          were  used to  launder money.   The  government argued  at trial,          however, that the check was relevant to demonstrate the existence          of  the conspiracy  prior  to the  dates  at  issue.   Given  our          deferential standard of review, we, therefore,  do not find abuse          of   discretion  in  this  case.    Although  we  might  conclude          differently if our  review were de  novo, we do not  believe that                                          ________          the court abused its discretion in accepting this argument.4                    B.  The Notebook Seized During Montalvo's Arrest                    B.  The Notebook Seized During Montalvo's Arrest                    Appellant Montalvo  also objects to the  admission of a          notebook  seized at  his home  at the  time of  his arrest.   The          government's  expert witness,  FBI Agent  Carl  Jensen, testified          that  "[t]he submitted documents are in a format of records which          could  be   maintained  in   connection  with  an   illicit  drug          distribution  business."  Tr. 7  at 1203.   Appellant argues that          the  notebook  had  no  probative  value  because  there  was  no          indication as  to when or  by whom  the notations had  been made,          there were no initials  or names, no dollar signs  or terminology          attached  to the numbers, and no  correlation between the numbers          in the notebook and the amounts involved in the offenses charged.                    Our  review is, once  again, on an  abuse of discretion          standard and  we do  not find  such abuse  here.  The  government                                        ____________________          4  Our failure to find abuse of discretion, of course, should not          be  taken as determinative of whether the lottery check should be          admitted in a future trial.                                         -23-          advanced the testimony  of an expert  witness who testified  that          the  notebook appeared to be  a record of  drug transactions; and          that it "lack[ed] the class characteristics [one] would expect to          find with  legitimate type  business records,"  Tr. 228 at  1203-          1204;  and  that  the  apparent  prices  in   the  notebook  were          consistent with the prices  of kilogram quantities of cocaine  in          central Florida,  where appellant Montalvo lived  during the time          frame of these events.                    Based  on this testimony, we do not find that the court          abused its  discretion in  admitting the notebook  into evidence.          The trial  court was in a much better position than this court to          assess the relevance of the notebook.  The decision to admit  the          notebook was within the sound discretion of the district court.                    C.  Notebook Seized from Robles                    C.  Notebook Seized from Robles                    Appellant Montalvo  next claims error in  the admission          of a notebook seized from Robles' home on the ground  that it was          not  adequately authenticated  as  required by  Federal Rules  of          Evidence 901.5  We review for abuse of discretion.  United States                                                              _____________          v. Echeverri, 982 F.2d 675, 679 (1st Cir. 1993).             _________                                        ____________________          5  Rule 901 provides, in part:                      The  requirement   of  authentication  or                      identification  as a  condition precedent                      to admissibility is satisfied by evidence                      sufficient to support a finding  that the                      matter in question is what its proponents                      claim.          Fed. R. Evid. 901(a).                                         -24-                    We   must  determine   whether  "there   is  sufficient          threshold proof that the document is what its proponent claims it          to be."   Id.  at  679.   The Federal  Rules of  Evidence take  a                    ___          flexible approach to this issue.  The document's authenticity may          be  confirmed  by  "[a]ppearance,  contents,  substance, internal          patterns,   or  other   distinctive  characteristics,   taken  in          conjunction with circumstances."   Id.   The notebook was  found,                                             ___          along with Robles' identification card, in a briefcase in Robles'          room.   Such  circumstantial evidence  is permitted  in order  to          authenticate the item.   Id. at  680.   We do not  find that  the                                   ___          district court  abused its discretion in  admitting this document          into evidence.6                        V.  Sufficiency of the Evidence Claims                        V.  Sufficiency of the Evidence Claims                    Appellants seek  to have their convictions reversed and          the  case dismissed  on the  grounds that there  was insufficient          evidence, as a matter of law, to convict them.  In reviewing such          a claim, we must  determine if, "after assaying all  the evidence          in  the  light most  amiable to  the  government, and  taking all          reasonable inferences  in its favor, a  rational factfinder could          find,   beyond   a  reasonable   doubt,   that  the   prosecution          successfully proved the essential elements of the case."   United                                                                     ______          States v.  O'Brien, 14 F.3d 703,  706 (1st Cir. 1994).   "[W]e do          ______     _______          not pass on the  credibility of the  witnesses, nor do we  demand          that the government disprove every hypothesis consistent with the                                        ____________________          6  We repeat our earlier statement that our conclusion that there          was no abuse of discretion should not be taken as a ruling on the          admissibility of the evidence on remand.                                         -25-          defendant's innocence."   United States v. Spinney,  65 F.3d 231,                                    _____________    _______          234 (1st Cir. 1995) (citations omitted).                    In order to prove the conspiracy charge, the government          was required to prove that appellants:                      intended to agree and that  they intended                      to   commit   the  substantive   criminal                      offense  [distribution of  cocaine] which                      was   the   object   of  their   unlawful                      agreement.  Due to the clandestine nature                      of   criminal   conspiracies,   the   law                      recognizes that the illegal agreement may                      be either  'express or tacit'  and that a                      'common purpose and  plan may be inferred                      from                         a                         development                                   and                                     collocation                                               of                                                circumstances.'          United  States  v. S nchez,  917 F.2d  607,  610 (1st  Cir. 1990)          ______________     _______          (internal citations omitted).                    To prove  the money  laundering charge,  the government          had to demonstrate that defendants:                      (a)(1) knowing that the property involved                      in a  financial transaction represent[ed]                      the proceeds  of  some form  of  unlawful                      activity,  conduct[ed] or  attempt[ed] to                      conduct  such   a  financial  transaction                      which  in fact  involves the  proceeds of                      specified unlawful activity                         (A)(i) with the  intent to  promote                         the   carrying   on  of   specified                         unlawful activity; or                         . . . .                         (B)knowing that  the transaction is                         designed  in whole  or  in part  to                         conceal or disguise the nature, the                         location,    the    source,     the                         ownership,  or  the control  of the                         proceeds   of  specified   unlawful                         activity.          18 U.S.C.   1956(a)(1).                    The convictions  in this  case rested  on conversations          between  appellants and  Robles, as  well as  other conversations                                         -26-          involving Robles.  It was for the jury to determine whether these          conversations related to legitimate  business dealings or illegal          drug transactions.    Viewing  the  evidence in  the  light  most          amiable to  the government,  we conclude  that a reasonable  jury          could  have  concluded  that   the  conversations  in  the  tapes          concerned drug  related transactions.  With  respect to Montalvo,          the  jury could also have  inferred guilt from  the notebooks and          the lottery check put  into evidence.  With respect  to Gonz lez-          Maldonado, evidence was presented that transactions took place at          his  place of business and a reasonable jury could have concluded          that the taped conversations  demonstrated his involvement in the          conspiracy and  the money laundering.   These conversations could          be interpreted to have  dealt with cocaine that had  been damaged          in shipment, cocaine stored at his place of business, and cocaine          to be imported in  the future.  Such inferences  were permissible          and,  therefore, we find the sufficiency of the evidence claim to          be without merit.                                   VI.  Sentencing                                   VI.  Sentencing                    Finally, appellant  Montalvo claims error  in both  the          court's  calculation of the quantity of drugs for which he should          be   held  responsible   and   the  court's   role-in-the-offense          determination.  Because we  are remanding  the case, we  need not          reach this  issue.  In the  event of a new  trial, with different          testimony and different arguments,  the trial court will be  in a          better  position than we are  today to determine  the quantity of          drugs  for  which  appellants,   if  convicted,  should  be  held                                         -27-          responsible, and to make an evaluation of defendants' role in the          offense.                                   VII.  Conclusion                                   VII.  Conclusion                    For  the reasons stated  herein, we  vacate appellants'                                                         vacate                                                         ______          convictions and remand the case to the district court for further                          remand                          ______          proceedings consistent with this opinion.                                         -28-
