Unpublished Disposition, 878 F.2d 387 (9th Cir. 1989)

MEMORANDUM^* 

Parvez Sharif appeals from the judgment entered upon his conviction by a jury of three counts of using a telephone to facilitate a conspiracy in violation of 21 U.S.C. § 893(b) and (c) and 18 U.S.C. § 2. Sharif seeks reversal on five grounds:

One. The record and transcription of Sharif's conversations were inadmissible because the government did not present sufficient evidence of necessity for a court order to intercept telephone communications.

Two. The English translation of Sharif's telephone conversations conducted in Urdu was inadmissible because (1) the interpreter was biased and incompetent, and (2) the translation was inaccurate.

Three. The prosecutor committed prejudicial misconduct in his closing argument by arguing facts not in evidence.

Four. There is an impermissible variance between the evidence presented to the grand jury to prove the existence of a conspiracy and the proof presented at trial.

Five. The government failed to prove a necessary element of the charge of facilitation.

We discuss each of these contentions and the facts pertinent thereto under separate headings.

PROOF OF NECESSITY

Sharif contends that the government failed to make a sufficient showing of necessity for the issuance of an order authorizing a wiretap. We disagree. We review the question whether the record shows sufficient proof of necessity to intercept telephone conversations pursuant to 18 U.S.C. § 2518 independently without deference to the district court's findings and conclusions. United States v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986); United States v. Brown, 761 F.2d 1272, 1275 (9th Cir. 1985).

To obtain a court order authorizing a wiretap, the government must make a showing of "specific circumstances that render normal investigative techniques particularly ineffective." United States v. Ippolito, 774 F.2d. 1482, 1486 (9th Cir. 1985). " [T]he government must show by a full and complete statement that 'normal investigative techniques employing a normal amount of resources have failed to make a case within a reasonable period of time.' " Id. at 1486 (quoting United States v. Spagnuolo, 549 F.2d 705, 710 (9th Cir. 1977)).

" [T]he necessity requirement is not intended to relegate the use of wiretaps to that of last resort." United States v. Brown, 761 F.2d at 1275. Law enforcement officers need not exhaust every conceivable investigative technique before seeking authority to intercept telephone communications. United States v. Brone, 792 F.2d at 1506. In evaluating the government's showing, "the reviewing court should use a standard of reasonableness." United States v. Ippolito, 774 F.2d at 1486.

Special Agent Joseph Catale submitted a 42-page affidavit in support of the wiretap application which sets forth the problems encountered in investigating this narcotics distribution ring that necessitated a wiretap. It is difficult to infiltrate any group trafficking in drugs. The problem of undercover infiltration is virtually insurmountable when the ring is comprised of members of the same ethnic group who speak a foreign language and some of whom may be related. Ordinary surveillance techniques are ineffective where, as here, the members of the conspiracy conduct their negotiations over the telephone. Telephone toll call records and pen registers cannot reveal the words that were spoken or the identity of the parties to a conversation.

Special Agent Catale also alleged that the issuance of a grand jury subpoena would compromise the investigation. Confidential informants who had provided information were unwilling to testify out of fear for their own safety. The families of individuals suspected of being informants had been threatened. One suspected informant had been kidnapped and held for several days. Ordinarily, a search warrant might result in the seizure of heroin, however, it might not be helpful in providing information concerning the scope of the distribution network or the identity of each member. The facts alleged by Special Agent Catale, if reasonably interpreted, established that ordinary investigative techniques appeared unlikely to succeed if tried or were too dangerous to attempt. The showing made by the government was sufficient to show necessity for a court-ordered wiretap. Therefore, the tape recordings of these conversations were admissible.

ADMISSIBILITY OF THE ENGLISH LANGUAGE

TRANSCRIPTS OF THE TAPED CONVERSATIONS

Sharif asserts that the interpreter was biased and incompetent. He argues that the use of his English translation of the taped conversations conducted in Urdu violated his right to due process. No objection was made at trial to the admission of the English translations. Accordingly, this court may decline to consider this issue unless the record shows plain error. Rule 103(d) Federal Rules of Evidence. Plain error is shown if the evidence was inadmissible and its admission affected the outcome and denied a defendant his right to a fair trial. United States v. Houser, 804 F.2d 565, 570 (9th Cir. 1986) (citation omitted).

The interpreter testified that he was an employee of the Drug Enforcement Administration, after having acted as a confidential informant for that agency. Prior to his involvement with the DEA, the witness had done intelligence work for the government of Pakistan. His native language is Urdu. While in college in Pakistan, he had translated Urdu into English. He previously served as an interpreter in several trials in this country and Europe.

During a vigorous cross-examination, Sharif's attorney brought out certain discrepancies in the witness's English translation. The jury heard the witness' concessions of inaccuracies in his translation. Sharif has failed to demonstrate that these inaccuracies affected the outcome of the trial.

Sharif also argues, without citation to any authority, that an English translation of a conversation conducted in a foreign language is inadmissible hearsay. No objection was made at trial on this ground. Sharif has failed to demonstrate that the admission of the English translation of the taped conversations denied him the right to a fair trial. Accordingly, reversal on this ground is not warranted.

III

ALLEGED PROSECUTORIAL MISCONDUCT

Sharif contends that the prosecutor committed misconduct in closing argument by inferring from Sharif's use of the word "tickets" that he was referring to heroin. Sharif asserts that there is no evidence in the record that "tickets" was a code word for "heroin."

The government's proof at trial was based primarily on statements made during a series of conversations between Sharif and Nareeb Ur Rahman. These conversations were conducted in Urdu, using code words to mask the fact they were discussing heroin distribution.

There was no objection to the prosecutor's comment at trial. Therefore, we must review this contention for plain error. United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986).

The prosecutor's comment was made in response to Sharif's attorney's argument that, based on Sharif's statement to Rahman on April 18, that "nothing can be done," there was no evidence that any deal was ever consummated after April 18. Sharif's counsel asked the jury to infer that either there never had been an agreement or that Sharif backed out of the deal. In response, the prosecutor argued that the jury could infer from the reference to an earlier delivery of "tickets" in the May 24 telephone call that Sharif and Rahman were still negotiating.

The prosecutor's comment was a permissible response to the argument by defense counsel made on Sharif's behalf. Sharif has failed to demonstrate that this comment denied him a fair trial.

THE ALLEGED VARIANCE

Sharif argues that the district court erred in denying his motion to dismiss the indictment on the ground that there was a variance between the evidence presented to the grand jury and that presented at trial as proof of the existence of a conspiracy. The government responds that Sharif did not make a dismissal motion. The following colloquy contains the only reference to the alleged dismissal motion:

Mr. Pitaro: Judge, I would like to say, you know, if I am not mistaken, 1-A was never presented to the Grand Jury to bring into the indictment. Exhibit 1-A.

The transcript is what they found earlier this year that had never been transcribed.

The Court: I don't know. You know, I wasn't with the Grand Jury.

Mr. Pitaro: Well I mean based upon the representations you gave me of the transcript, it was one that was never presented in front of the Grand Jury and she is saying that that's what it is. And then the indictment should be dismissed because the Grand Jury never got the conspiracy to begin with, isn't that correct, Valino?

The Court: I don't know what you are talking about.

Assuming arguendo this informal discussion can be construed as a motion to dismiss, Sharif's contention lacks merit. Sharif was not convicted of conspiracy. Thus, Sharif was not prejudiced by the failure of the court to dismiss the conspiracy count.

LEGAL SUFFICIENCY OF THE EVIDENCE OF FACILITATION

In addition to the three facilitation counts, Sharif was charged with the crime of conspiracy to violate 21 U.S.C. § 841(a) (1) by possessing and distributing heroin. The jury was unable to agree upon a verdict on the conspiracy charge. The district court declared a mistrial.

Sharif was convicted as charged of three counts of using a telephone to facilitate the conspiracy alleged in the indictment as a separate crime. Sharif filed a motion for entry of a judgment of acquittal of the three facilitation counts pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. The district court granted the motion. The district court concluded that because the evidence was insufficient to establish the alleged conspiracy, the government had failed to prove an essential element in the indictment.

The government appealed from the entry of the judgment of acquittal. We reversed in United States v. Sharif, 817 F.2d 1375 (9th Cir. 1987). We held that the evidence was sufficient to prove the facilitation counts. Id. at 1378-79. We directed the district court to vacate its order and to enter a judgment of conviction on the facilitation counts. Id. at 1379. The district court followed our instructions, reinstated the convictions, and sentenced Sharif. This appeal followed. Under the doctrine of the law of the case, we reject the claim of insufficiency of the evidence. See Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985), cert. denied, 475 U.S. 1064 (1986) (under the law of the case doctrine a decision of the court in a prior appeal must be followed in all subsequent proceedings in the same case.).

AFFIRMED.