                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                     No. 11-4287
                                   ______________

                          UNITED STATES OF AMERICA

                                           v.

                                   JOSE ADAMES,
                                                             Appellant
                                   ______________

                    On Appeal from the United States District Court
                           for the District of New Jersey
                         (D.C. Crim. No. 1-10-00686-001)
                      Honorable Noel L. Hillman, District Judge
                                  ______________

                      Submitted under Third Circuit LAR 34.1(a)
                                 December 14, 2012

     BEFORE: GREENAWAY, JR., GREENBERG, and COWEN, Circuit Judges

                                (Filed: January 9, 2013)
                                    ______________

                              OPINION OF THE COURT
                                  ______________

GREENBERG, Circuit Judge.

      This matter comes on before this Court on an appeal from a judgment of

conviction and sentence entered in this criminal case on November 28, 2011. A grand

jury returned a one-count indictment charging appellant, Jose Adames (hereinafter

“Adames”), and his wife, Angelita Adames, with a violation of 18 U.S.C. § 286 for
conspiracy to defraud the United States. The indictment arose out of a scheme to obtain

and cash federal tax refund checks fraudulently. Overall, the criminal activity allowed

Adames and Angelita to cash 102 income tax refund checks with a total value of

$668,298 obtained by co-conspirators by filing fraudulent tax returns indicating that

refunds were due. Adames obtained these checks from co-conspirators in New York City

and Angelita subsequently cashed them at a business called Imperial Check Cashing in

Camden, New Jersey. Angelita pleaded guilty, but Adames went to trial and was

convicted. The District Court subsequently sentenced Adames to a 33-month custodial

term to be followed by a three-year term of supervised release. In addition, the District

Court ordered Adames to pay restitution in the amount of $668,298.73, a requirement that

he does not challenge on this appeal. In calculating his sentencing guidelines offense

level for use in determining the length of the custodial sentence, the Court denied

Adames‟s request that it depart downward from the offense level that it otherwise would

reach as Adames contended that he had a minimal or minor role in the offense.

       Adames filed a timely appeal from the judgment of conviction and sentence.

Though he does not challenge the sufficiency of the evidence to support the verdict,

Adames contends that recordings of inculpatory telephone conversations that he had with

Edwards Jiminez, a government informant, made without Adames‟s knowledge or

consent, should not have been admitted into evidence at the trial. Jiminez, who was

cooperating with the government, made these recordings and testified as a government

witness at the trial. Adames contends that “[i]t is difficult to overstate the centrality of

[this] testimony . . . to the government‟s case against Adames [as t]he government‟s case

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literally rose and fell, both substantively and procedurally, on Jimenez‟s credibility [as no

other witness] testified to any inculpatory statements by Adames.” Appellant‟s br. at 5.

In what Adames describes in his brief as a “curious counterpoint,” id. at 14, Adames used

a surreptitious recording technique against Jiminez about two years after these recorded

telephone conversations when, on January 17, 2011, he recorded, without Jimenez‟s

knowledge, a conversation between the two of them when they were in an automobile. In

this conversation Jiminez said that he had cooperated with the government because of the

government‟s pressure on him to do so as he feared that, unless he cooperated, he faced a

long sentence on pending criminal charges for passport fraud unrelated to this case.

       Prior to the trial Adames sought an order suppressing the recordings of his

telephone calls with Jiminez and for this purpose sought a hearing pursuant to United

States v. Starks, 515 F.2d 112 (3d Cir. 1975). Under Starks the government had the

burden of producing clear and convincing evidence of the authenticity and accuracy of

the recordings as a foundation for their admissibility which it could satisfy by supplying

“substantial evidence” from which a jury could infer that the recordings were authentic.

See United States v. Reilly, 33 F.3d 1396, 1404 (3d Cir. 1994). Starks set forth seven

factors for a court to consider in admitting surreptitiously recorded evidence one of which

was that “the conversation elicited was made voluntarily and in good faith, without any

kind of inducement.” Starks, 515 F.2d at 121 n.11.1


1
 On this appeal Adames does not challenge the authenticity or accuracy of the transcript
of the telephone conversations and he does not contend that the making of the recordings
was unlawful. Indeed, he quotes from United States v. Antoon, 933 F.2d 200, 203-04 (3d
Cir. 1991), for the principle that, if one party to a conversation consents to its recording,
                                              3
       As Adames requested, the District Court conducted a Starks hearing during which

his attorney at a side-bar conference out of the presence of persons who were not parties

to the conference, including the case agent and Jiminez, voluntarily revealed that he had a

transcript of the previously unrevealed January 17, 2011 conversation between Adames

and Jiminez.2 Adames requested that Jiminez and the case agent not be advised of the

existence of the transcript of the January 17, 2011 conversation until after Jiminez

testified on direct examination at the Starks hearing. Adames made this request as he

believed that, if Jiminez did not have an opportunity to review the transcript of the

January 17, 2011 conversation before he testified, Adames‟s cross-examination of him on

the Starks voluntariness issue would be more effective. The District Court denied

Adames‟s request and thus Jiminez was able to review the transcript before he testified.

In admitting the testimony regarding the recorded telephone conversations the Court

found that Jiminez made the recordings voluntarily. Following his sentencing Adames

filed this timely appeal.3

       Adames advances three points on this appeal:




the recording is lawful. Although the government does not raise the point on this appeal,
it is difficult to understand why the voluntariness Starks factor is material in a
determination of whether a recording was authentic.
2
 The parties do not cite any statute, rule, or court order that required Adames to reveal
the existence of this transcript, at least at the point in the proceeding that he did so. In
fact, the government characterizes Adames‟s action in revealing the tape as an “election.”
Appellee‟s br. at 8.
3
 The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                             4
       I.     The recordings made by Jiminez should not have been admitted as
       the requirements of United States v. Starks that such recordings be made
       „voluntarily and in good faith‟ were not satisfied.

       II.    The District Court violated [Fed. R. Crim. P.] 26.2 and compromised
       Adames‟s ability to cross-examine Jiminez by ordering that he be provided
       with a transcript of a conversation with him recorded by Adames.

       III.  Adames should have been granted a downward adjustment as a
       „minimal participant‟ in the scheme.

Br. at 1.

       Adames indicates that our standard of review on all three issues is whether the

District Court abused its discretion in making its rulings. The government agrees that the

evidentiary questions involve abuse of discretion review but contends with respect to the

sentencing issue that our standard of review requires that we examine the District Court‟s

decision for clear error. See United States v. Dullum, 560 F.3d 133, 140 (3d Cir. 2009).

As a practical matter the distinction makes no difference because our review under either

standard leads us to reach the same result.

       In starting our discussion we point out that this case is unusual in that the victim of

the offense, the United States, apparently was unaware that it had been defrauded until

Jiminez, a friend of Adames, reported the scheme to the government. As might be

expected, Jiminez‟s motivation to reveal the scheme was not the product of a desire to

serve the public interest. Rather, Jiminez, who had been arrested for passport fraud,

hoped that by informing on Adames he would be able to secure a reduction in the length

of his own sentence. Indeed, Jiminez‟s information did lead the IRS to investigate the




                                              5
cashing of refund checks at Imperial during which it uncovered the conspiracy leading to

this prosecution.

       The background that we have set forth essentially forecloses Adames‟s challenge

to the admission of the telephone conversation recordings. Thus, while Jiminez tried to

explain to Adames in his January 17, 2011 conversation that government pressure led

him to cooperate in developing the case against Adames, the pressure he felt was nothing

more than his perceived need to cooperate for his own benefit. Furthermore, it was

Jiminez and not the government that initiated the inquiry into the existence of the

conspiracy as the government had not been aware that it had been defrauded until Jiminez

advised it of the scheme. Moreover, in testimony that the Court credited, Jiminez stated

at the Starks hearing that he recorded the telephone calls voluntarily and that he

fabricated his contrary explanation for recording the calls to Adames on January 17,

2011. Therefore, as did the District Court, we regard Jiminez‟s action in furtherance of

his informer‟s role as voluntary and we cannot possibly hold that the District Court

abused its discretion in rejecting Adames‟s Starks contention. Indeed, even if we

exercised plenary review on the issue, we would reach the same result.

       In reaching our result we have not overlooked Fed. R. Crim. P. 26.2(a), which

Adames brings to our attention and provides:

       After a witness other than the defendant has testified on direct examination,
       the court, on motion of a party who did not call the witness, must order an
       attorney for the government or the defendant and the defendant‟s attorney
       to produce, for the examination and use of the moving party, any statement
       of the witness that is in their possession and that relates to the subject
       matter of the witness‟s testimony.


                                             6
It is true that Rule 26.2 provides that after a witness has testified on direct examination a

party who did not call the witness is entitled to the production of the witness‟s statements

germane to his testimony but the obvious purpose of the rule is to make available the

statements for use on his cross-examination. But such use of a witness‟s statement has

nothing to do with the situation here in which Adames did not want Jiminez to know that

Adames‟s attorney had the transcript before Jiminez testified. In this regard, the

government surely did not need the statement for cross-examination so that it might have

been appropriate to delay its delivery to it until after Jiminez testified. After all, the

government was not going to cross-examine Jiminez who was its own witness.

Moreover, Adames did not need the Court‟s aid to obtain the statement for cross-

examination as he already had it when he revealed its existence. In fact, Rule 26.2 says

nothing about withholding a witness‟s statements but rather deals with the production of

statements. Thus, once Adames made the existence of the transcript of the recording

known, the transcript did not become shielded by Rule 26.2, so it cannot be said that the

District Court abused its discretion or violated the rule by requiring its production before

Jiminez testified.

       Finally, we reject Adames‟s contention that he was entitled to a four-level

reduction under U.S.S.G. § 3B1.2 in his offense level because his role in the offense was

minimal, and we also reject his alternative contention that he was at least entitled to a

lesser offense level reduction because his role was minor. The information available to

the District Court at sentencing showed that Adames picked up the checks in New York

and took them to Camden where Angelita cashed them. He then returned to New York to

                                               7
deliver the proceeds to his co-conspirators. It is perfectly clear that Adames‟s

participation in the offense was a vital part of the conspiracy and was neither minimal nor

minor for, unless the New York co-conspirators had a method to cash the fraudulently

obtained checks, they were worthless.

       The judgment of conviction and sentence of November 28, 2011, will be affirmed.




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