The opinion of the court was delivered by: JOHN FEIKENS
On December 16, 1992, the jury convicted defendant, Wilfredo Tavarez, of conspiring to possess and distribute heroin (21 U.S.C. § 846) and of possession with intent to distribute heroin (21 U.S.C. § 841(a)(1)).
Defendant moves for a new trial.
His only contention is that government counsel misrepresented the contents of a Kel-tape recording of an August 26, 1992 meeting between Tomas Valerio, the goverment's principal witness; Rafael Espinal, a confidential informant (the "CI"); and Domingo Diaz (a/k/a Celo), the only defense witness.
The claimed misrepresentation is that government counsel informed defense counsel, when defense counsel so requested prior to trial, that the tape did not contain any reference to the defendant.
Prior to trial the government turned over the Kel-tape and eight other tapes, all in the Spanish language, to defense counsel.
At the onset of trial, defense counsel asked me to order the government to provide a transcript of the Kel-tape (Exhibit 10) to defendant. I declined to do so, since government counsel stated that no tapes would be used in the government's case. I also ruled that if this transcript "becomes important" we would discuss the request again (Tr. 32).
The government did not introduce the Kel-tape or a transcript of it in its case-in-chief.
When the government rested, defendant produced Domingo Diaz as its only witness. He was present at Valerio's apartment on august 26, 1992. His testimony sought to exculpate the defendant. Diaz claimed that he did not know who the supplier of drugs was and that Valerio had told him "some black men" were supposed to bring the heroin (Tr. 274). It is clear from the record that government counsel did not expect Diaz to testify because, by testifying, Diaz inculpated himself by admitting that he was involved in the drug deal.
After Diaz testified, and before the trial resumed, government counsel, Beth A. Wilkinson, outlined her conduct in an affidavit filed with the court and said:
13. On Monday, December 14, 1992, Agent Kernan and I reviewed the draft transcript for the August 26 kel tape to see whether there was anything in the tape inconsistent with Diaz's trial testimony. We located the portion of the transcript concerning Diaz. It was at that time that I first discovered two references to "Wilfredo" on page 68 of the transcript. I realized then that the participants in the conversation were discussing the arrival of Wilfredo Tavarez. Although there was no mention of heroin, I believed I could argue to the jury that the brief conversation concerning the arrival of "Wilfredo" showed that Tavarez was the expected supplier on August 26, 1992, thereby rebutting Diaz's testimony.
14. On December 14, 1992, I contacted Isolina Bernhardt, a Spanish interpreter, and asked her to review the tape and the draft transcript. I also contacted the CI and told him that I would now need his testimony on rebuttal. That same day, Ms. Bernhardt and the CI reviewed the tape and the transcript. Ms. Bernhardt prepared a final transcript for the relevant portion of the tape which consists of only six pages of the original transcript.
15. The next day, December 15, 1992, I informed Ms. Metzger [defense counsel] that I was calling the CI as a rebuttal witness. When trial resumed, Ms. Metzger objected to the introduction of the tape and the transcript. She claimed that she had relied on the government's earlier statements that the tapes would not be introduced (Tr. 320). I explained that I had not planned to enter the tapes into evidence during the government's case-in-chief. I did not ...