United States v. Cabrera-Beltran

• Decision Date: 10 November 2011
• Docket Number: No. 10–4084.,10–4084.
• Citation: 660 F.3d 742,86 Fed. R. Evid. Serv. 1475
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Leopoldo CABRERA–BELTRAN, a/k/a George, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

660 F.3d 742

86 Fed. R. Evid. Serv. 1475

UNITED STATES of America, Plaintiff–Appellee,

v.Leopoldo CABRERA–BELTRAN, a/k/a George, Defendant–Appellant.

No. 10–4084.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 23, 2011.Decided: Nov. 10, 2011.

ARGUED: Lionel Aron Pena, Edinburg, Texas, for Appellant. Jeffrey Brian Bender, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. MacBride, United States Attorney, Kimberly Riley Pedersen, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Before TRAXLER, Chief Judge, and WILKINSON and NIEMEYER, Circuit Judges.

Affirmed by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge WILKINSON and Judge NIEMEYER joined.

OPINION

TRAXLER, Chief Judge:

Leopoldo Cabrera–Beltran was convicted by a jury of conspiracy to import and distribute cocaine and heroin. He challenges his conviction and sentence on multiple grounds. For the reasons that follow, we affirm.

I.

“We recite the facts in the light most favorable to the Government.” United States v. Murphy, 35 F.3d 143, 144 (4th Cir.1994). Prior to 2007, the defendant worked for a Mexican drug trafficking organization in which Branden Dodson (“Dodson”) was involved. In 2007, the defendant convinced Dodson to work directly for him and make both international and domestic drug-related trips at his direction. This drug trafficking and distribution scheme is best understood in terms of the vehicles used in the operation to transport drugs and money.

Nissan Sentra: Sometime in late December of 2006, Dodson assisted his fiancee, Stacy Dodson, in delivering a Sentra to Mexico to be outfitted with secret compartments. Once in Mexico, Dodson recruited Katrina Dodson, his sister-in-law, to assist him in driving the Sentra from Mexico to Chicago. Upon arriving in Chicago, they met up with the defendant and another individual and followed them to a detached garage where the defendant directed them to leave the Sentra. The defendant paid Dodson $12,000 for the delivery.

In September of 2007, the Sentra was stopped, and a search of the vehicle yielded $146,845 concealed in the front fender. Dodson, the registered owner, was not in the vehicle; however, when Dodson received a DEA Notice of Seizure relating to the money, the defendant requested a copy.

Nissan Murano: In June of 2007, Dodson recruited Thomas Breeden to deliver a Murano to the drug organization in Mexico. While in Mexico, the two men met up with the defendant, who gave $10,000 to Dodson for the purpose of purchasing a Jetta.

Volkswagen Jetta: Dodson used the $10,000 to purchase a Jetta in the United States. The defendant assisted him in obtaining a permit required to drive the vehicle to Mexico. Dodson then delivered the Jetta to the defendant in Mexico. In August of 2007, Dodson used the Jetta to make two drug smuggling trips at the defendant's direction. In the first trip, he picked up the Jetta from the defendant in Mexico, drove it to Michigan, met the defendant, and then delivered it to Nebraska. He was paid $20,000 for this trip. In the second trip, he picked up the Jetta from the defendant in Nebraska and delivered it to the defendant in Mexico. Shortly thereafter, Dodson delivered the Jetta to the defendant's associate in Michigan and then drove it to the defendant in Nebraska. He was paid $23,000 for this trip.

In October of 2007, Dodson picked up the Jetta from the defendant in Nebraska and delivered it to him in Mexico. The defendant returned the Jetta to Dodson, and Dodson delivered it to the defendant in Missouri. Dodson then drove the Jetta to Nebraska and left the vehicle in an airport parking lot. The defendant paid Dodson $20,000 for this trip. Similarly, in November of 2007, the defendant's associate gave Dodson the Jetta in Nebraska, and Dodson delivered it to the defendant in Mexico.

Isuzu Rodeo: In September of 2007, Breeden travelled to Mexico, picked up a Rodeo from the defendant, and drove it to Nebraska. He was paid $8,500 for making this trip. At some point during the trip, the Rodeo broke down, and the defendant provided assistance.

Buick: ¹ In December of 2007, Breeden met the defendant in Omaha and delivered a Buick to the defendant and the defendant's brother in Chicago. The defendant paid Breeden and gave him additional money for Dodson to purchase another vehicle.

In January of 2008, Dodson was stopped in the Jetta at the United States–Mexico border. Customs officials recovered fifteen packages concealed in a hidden compartment. The packages contained 9.343 kilograms of heroin and 4.978 kilograms of cocaine. Dodson was arrested, and the defendant was subsequently arrested. Law enforcement searched two residences associated with the defendant and recovered evidence of drug activity. During the searches, law enforcement also found two vehicles with built-in hidden compartments. One of the vehicles was registered to the defendant.

The defendant was indicted and convicted of conspiracy to import and distribute cocaine and heroin. He was sentenced within the guidelines range after application of a three-level enhancement for his role in the illegal operation.

II.

The defendant's first contention is that his rights under the Sixth and Fourteenth Amendments were violated when the district court during voir dire struck three Spanish-speaking prospective jurors who expressed an inability to accept English translations of Spanish testimony and documents. The district court, sua sponte, struck these jurors for cause. Because the record establishes that the court did not abuse its discretion in dismissing the jurors, we reject this argument and affirm the district court.

During voir dire, the judge asked the prospective jurors whether any of them were “fluent in the Spanish language.” Trial Transcript 37. She explained her reason for asking the question as follows:

Now, the reason I'm asking you this question is you-all can see that we have interpreters here. I'm not sure if any of the witnesses who will be testifying in this case will be using interpreters, but it's extremely important that when a jury decides the case, if there is a foreign language involved, you must decide the case on the translation that is provided to everybody in the courtroom. We don't want basically a shadow translator in the jury box.

Trial Transcript 37–38. Three of the prospective jurors indicated some ability to understand the Spanish language, so the judge asked each of them a follow-up question concerning their ability to accept English translations of the Spanish language. Each of the prospective jurors expressed an inability to do so:

THE COURT: If you were chosen to be a juror in this case and you disagreed with the interpretation or translation by the interpreters, could you base your decision on what the translator—all of these translators are court certified. Would you have any problem in basing your decision on what the translators have done?

PROSPECTIVE JUROR # 1: Well, Your Honor, I'm certain if I disagreed with the translator, it would have to be a matter that I would bring up either to the Court or to fellow jurors. I've also testified in civil court in a foreign country in a foreign language, Portuguese in this case, and I know the differences between translation and what was actually said in the court, so it's a matter of some sensitivity to me.

...

THE COURT: [I]f you were to believe that the translators were not accurately translating what the witness might be saying, would you be able to base your decision on what the translator has said, or would you have problems with that?

PROSPECTIVE JUROR # 2: It would depend on, you know, what was said. If, you know, the difference. I couldn't give you a specific yes-or-no answer.

...

THE COURT: All right. You've heard my question to the other two potential jurors. Would you have difficulty if you felt that there was a translation that you didn't agree with?

PROSPECTIVE JUROR # 3: Yes.

Trial Transcript 38–39. The court, sua sponte, struck each of these prospective jurors for cause.² Of the three, only one was excused based solely on his inability to accept English translations. The other two were excused based on this inability and other factors. See Trial Transcript 80.

The defendant first argues that the striking of Spanish-speaking prospective jurors violated his right to Equal Protection under the Fourteenth Amendment. The Supreme Court's plurality and dissenting opinions in Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), a factually similar case, guide our resolution of the defendant's Equal Protection claim. Hernandez involved a Batson challenge to the striking of two prospective Latino jurors. At trial, the prosecutor explained that his decision to peremptorily strike the potential jurors was based on his “uncertainty as to whether they could accept the interpreter as the final arbiter of what was said by each of the witnesses, especially where there were going to be Spanish-speaking witnesses.” Id. at 356, 111 S.Ct. 1859 (plurality opinion) (internal quotation marks omitted). A majority of the Court concluded that the prosecutor's rationale was a race-neutral basis for striking the jurors that did not contravene the Equal Protection clause. See id. at 372, 111 S.Ct. 1859 (plurality opinion); id. (O'Connor, J., concurring).

Although Hernandez involved a Batson challenge rather than a for-cause challenge as in the instant case, seven of the Supreme Court justices in Hernandez took the opportunity to note that a juror's inability to accept a translator's interpretation would support a valid for-cause challenge. In the four-justice plurality opinion, the Court acknowledged that a juror's inability to accept a translation would be a valid for-cause challenge. Id. at 362–63, 111 S.Ct. 1859 (plurality opinion) (“While the reason offered by the...