United States of America, Plaintiff-Appellee-Cross-Appellant v. Victor Manuel Lee Armijo, Defendant-Appellant-Cross-Appellee

5 F.3d 1229 38 Fed. R. Evid. Serv. 1264 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Victor Manuel Lee ARMIJO, Defendant-Appellant-Cross-Appellee. Nos. 90-30408 and 91-30034. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 7, 1993. Decided Sept. 7, 1993. Charles S. Dorn and Patrick K. Stiley, Stiley & Kodis, Spokane, WA, for defendant-appellant-cross-appellee. Ronald W. Skibbie, Asst. U.S. Atty., Spokane, WA, for plaintiff-appellee-cross-appellant. On Appeal from the United States District Court for the Eastern District of Washington. Before: SKOPIL, ALARCON and BEEZER, Circuit Judges. SKOPIL, Circuit Judge: 1 Victor Manuel Lee Armijo appeals his conviction following a jury trial for distribution of cocaine in violation of 21 U.S.C. Sec. 841 (a)(1) (1988). He contends that the district court erred by (1) admitting evidence of a witness' prior inconsistent statement; (2) admitting an English transcript of a recorded Spanish conversation; and (3) denying admission of a letter allegedly written by one witness to another witness. The government cross-appeals Armijo's sentence under the Sentencing Guidelines, assigning as error the…

Victor Manuel Lee Armijo appeals his conviction following a jury trial for distribution of cocaine in violation of 21 U.S.C. § 841 (a)(1) (1988). He contends that the district court erred by (1) admitting evidence of a witness’ prior inconsistent statement; (2) admitting an English transcript of a recorded Spanish conversation; and (3) denying admission of a letter allegedly written by one witness to another witness. The government cross-appeals Armijo’s sentence under the Sentencing Guidelines, assigning as error the reduction in his base offense level for acceptance of responsibility. We affirm.

*1232 FACTS AND PRIOR PROCEEDINGS

Armijo’s conviction resulted from a Drug Enforcement Agency (DEA) sting operation in which Jose Contreras sold a kilogram of cocaine to undercover agents. Contreras disclosed his supplier as Armijo. Contreras and his girlfriend, Michelle Massengale, engaged Armijo in two recorded telephone conversations that disclosed his involvement in the transaction. The DEA obtained search warrants for Armijo’s home, vehicles, and his parents’ home. At trial, the evidence against Armijo consisted primarily of Contreras’ testimony against Armijo, the recorded…

dissenting:

The majority’s holding today permits a judgment of conviction to stand where “the most damaging evidence” against the defendant was presented through the testimony of an expert witness who was not sworn to testify truthfully and was not reminded of the penalty for perjury. Because I believe that a conviction based on the unsworn testimony of a key witness violates the defendant’s Sixth Amendment right to meaningful confrontation, I respectfully dissent.

I.

The majority concludes that “there was no error, and certainly no plain error” in the court’s failure to administer a specific witness oath to Ms. Ahrens. Maj. opinion at —1235. I disagree. As the majority correctly notes, there is no constitutional or statutorily required form of oath. United States v. Ward, 989 F.2d 1015, 1019 (9th Cir.1992). We have stated that “any statement indicating that the [witness] is impressed with the duty to tell the truth and understands that he or she can be prosecuted for perjury for failure to do so satisfies the requirement for an oath or affirmation_” Gordon v. Idaho, 778 F.2d 1397, 1400 (9th Cir.1985). The oath formulated by the district court and administered to Ms. Ahrens,,…