Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, Senior District Judge, Presiding D.C. No. 5:99-cr-20094-RMW-1
The opinion of the court was delivered by: Berzon, Circuit Judge:
Argued and Submitted December 6, 2011-San Francisco, California
Before: Diarmuid F. O'Scannlain and Marsha S. Berzon, Circuit Judges, and Robert S. Lasnik, District Judge.*fn1
Carlos Quintana Solorio ("Solorio") was arrested during a Drug Enforcement Agency ("DEA") "buy bust" operation for arranging to sell methamphetamine to a government informant.*fn2
Following a jury trial, Solorio was convicted of possession with intent to distribute 500 or more grams of a substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii), and conspiracy to distribute 500 or more grams of a substance containing methamphetamine, in violation of 21 U.S.C. § 846.
Solorio now appeals his conviction on four grounds, contending that: (1) the trial court committed reversible plain error by not requiring interpreters to take an oath, pursuant to Federal Rule of Evidence 604, before translating the government informant's testimony at trial; (2) allowing two DEA agents to recount the "present sense impressions" of other non-testifying agents violated Solorio's right to confrontation; (3) there was insufficient evidence to prove, beyond a reason-able doubt, that Solorio actually possessed methamphetamine; and (4) cumulative error warrants reversal.*fn3
A. Events preceding the "buy bust" operation
On May 5, 1999, Miguel Portillo-Rodriguez ("Portillo-Rodriguez") approached Solorio at a casino in San Jose, California and expressed an interest in buying drugs. Portillo-Rodriguez had worked as a government informant for nineteen years, earning $18,000-$19,000 annually and receiving immigration benefits for both himself and his family. Solorio, who was with a companion named Servando Jimenez ("Jimenez"), replied that he could sell Portillo-Rodriguez methamphetamine, and gave him a free drug sample.
Later that day, Portillo-Rodriguez went to the San Jose DEA office and informed Special Agent Hilda Rubino ("Rubino") of his meeting with Solorio and Jimenez. Portillo-Rodriguez gave Rubino the drug sample that Solorio had given him. The sample tested presumptively positive for methamphetamine in a non-conclusive field test and was sent to the Western Regional Laboratory in San Francisco for further testing. Based on the information Portillo-Rodriguez provided, Rubino opened a drug investigation.
Rubino began the investigation by instructing Portillo-Rodriguez to contact Solorio and arrange to buy five pounds of methamphetamine. Following that directive, Portillo-
Rodriguez called Solorio on May 12, 1999 and arranged to meet him for a drug sale that afternoon at a Costco store in San Jose. Solorio said on the call that he could obtain seven pounds of methamphetamine, and Portillo-Rodriguez agreed to buy that amount at $5,000 per pound. That price was consistent with the standard charge for methamphetamine in San Jose at the time.
DEA agents gave Portillo-Rodriguez a bag containing $25,000 cash, which Portillo-Rodriguez placed in the trunk of the car he drove to the arranged meeting spot. All went well at the outset: Solorio showed up at the Costco as planned, arriving in a gray van driven by Jimenez. After Portillo-Rodriguez showed him the money, however, Solorio responded that he did not have the drugs with him and suggested completing the deal at his work place, presumably that same day. Portillo-Rodriguez, however, had been instructed by DEA agents not to complete the deal anywhere else that day, as the agents had an operational plan set up specifically for the Costco location; moving the operation at that point would have raised safety concerns. So, rather than agreeing to Solorio's proposal, Portillo-Rodriguez agreed to call Solorio at a later time.
B. The "buy bust" operation
Following up, Portillo-Rodriguez called Solorio on June 3, 1999. DEA agents were with Portillo-Rodriguez during the call and recorded the conversation, during which the men agreed to meet that afternoon to complete the drug deal. The meeting place arranged this time was near the body shop where Solorio worked. When Portillo-Rodriguez asked, "What's gonna be the, the number of people," which, according to the evidence at trial, was code for the number of pounds Solorio was selling, Solorio replied, "Five." Portillo-Rodriguez then asked, "[S]o after all it's not . . . all 7 weren't gonna go?" Solorio responded, "He couldn't," but assured Portillo-Rodriguez that the deal was for "sure."
As the men had discussed, Portillo-Rodriguez met Solorio near Solorio's workplace. At first, Solorio indicated once again that he did not want to complete the deal, this time explaining that he was "nervous because there was a van or vehicle there that he didn't like the looks of." Agent Rubino, who was monitoring the conversation, alerted other agents that the van, which was indeed a DEA surveillance vehicle, needed to be moved. Soon, the "suspicious" van left, and Jimenez joined Portillo-Rodriguez and Solorio. The three men then ...