U.S. v. Gonzalez, 01-2357.
| Decision Date | 06 February 2003 |
| Docket Number | No. 01-2996.,No. 01-4229.,No. 01-2543.,No. 01-2357.,01-2357.,01-2543.,01-2996.,01-4229. |
| Citation | 319 F.3d 291 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Luis GONZALEZ, Alphonso Chavez, Jaime Rodriguez, and David C. Perez, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Manish Shah (argued), Office of U.S. Attorney, Criminal Div., Chicago, IL, for U.S.
Frederick F. Cohn (argued), Chicago, IL, for Luis Gonzalez.
Ralph E. Meczyk (argued), Chicago, IL, for Alphonso Chavez.
Jeffery T. Mandell (argued), Chicago, IL, for Jaime Rodriquez.
Charles A. Banker, III (argued), McAllen, TX, for David C. Perez.
Before FLAUM, Chief Judge, and CUDAHY and COFFEY, Circuit Judges.
Luis Gonzalez, Jamie Rodriguez, Alphonso Chavez, and David C. Perez were all involved in a scheme to possess and distribute drugs. After Perez was stopped and arrested while transporting drugs in a truck, he agreed to participate in a controlled delivery, which led to the arrests of Gonzalez, Rodriguez and Chavez. After trial Gonzalez and Rodriguez were found guilty of conspiring to possess with the intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846 and attempt to possess with the intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846. Chavez, though he was charged with both conspiracy and attempt, was found guilty only of the conspiracy charge. Perez pleaded guilty to possession with the intent to distribute in excess of 5 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1). Rodriguez was sentenced to 151 months imprisonment; the other three defendants were sentenced to 235 months imprisonment. Perez appeals his sentence. Rodriguez, Gonzalez, and Chavez appeal numerous evidentiary rulings by the district court. Rodriguez and Chavez additionally appeal their sentences. For the reasons stated herein, we affirm.
On March 24, 2000, Perez was driving a watermelon truck on Interstate 57 near Effingham, Illinois. Perez was pulled over by a state trooper for driving 59 miles per hour where the posted speed limit was 55 miles per hour. Perez consented to a search, which uncovered 130 kilograms of cocaine. Perez claimed that he believed he was transporting marijuana and not cocaine. Perez agreed to cooperate with the police in a controlled delivery.
He told the police that he was going to be paged and given further instructions for the delivery. While he was cooperating, Perez received a page from a cellular phone that was later recovered from defendant Gonzalez. Perez called the number from the police station and engaged in a conversation with Gonzalez, which the police recorded. Gonzalez told Perez to call back when he was closer to Chicago.
Perez, along with law enforcement agents, went to a Comfort Inn in Bolingbrook, Illinois. During a series of phone conversations between Gonzalez and Perez, a meeting at the Comfort Inn was arranged. Gonzalez and Rodriguez showed up at the Comfort Inn in a brown car without license plates at 2:30 a.m. on March 25. The men met in a room at the Comfort Inn and discussed getting a warehouse for delivery.
Meanwhile Chavez received a call from his brother Ramon asking him to get a warehouse ready. Chavez secured a warehouse in Des Plaines, Illinois, by bribing employees of the warehouse. He secured the warehouse for use at 7:00 p.m. on March 25. At trial Chavez claimed that he believed he was securing a warehouse for the purpose of "souping-up" a truck for a tractor pull.
During the day on March 25, Gonzalez spoke with Perez on the phone and set up a meeting at a McDonald's restaurant at an oasis in Des Plaines, Illinois, at 6:00 p.m. After delivering the watermelons on the truck, Perez went to the oasis. At 6:30 p.m. Perez entered the McDonald's and met Gonzalez there. Chavez arrived at 6:40 with his brother Ramon. Rodriguez, who had come with Gonzalez, was at the oasis but may have never entered the McDonald's. Ramon told Chavez to go ahead and meet them at the warehouse. Chavez did so. After the meeting Gonzalez and Ramon went to a tool store and then proceeded to the warehouse. Perez, following Rodriguez who was in a minivan, drove the truck to the warehouse.
At the warehouse Chavez took care of paying the warehouse employees. Rodriguez and Perez drove the minivan and the truck into the warehouse with Chavez. After the vehicles were in the warehouse and the doors were closed, the law enforcement officers gave an arrest signal and entered the warehouse. Chavez and Rodriguez tried to run but were caught and arrested. Gonzalez and Ramon, who were pulling up to the warehouse at the time, attempted to flee in their vehicle. A chase ensued but in the end they were arrested.
During the arrests numerous pieces of evidence were recovered, including Gonzalez's wallet and cell phones and other personal effects belonging to the various defendants.
Perez entered into a plea agreement by which he agreed to testify against the other participants. In front of the grand jury Perez provided the testimony against the others as agreed. Rodriguez, Gonzalez, Perez and Chavez were all indicted. Ramon was not indicted. Prior to trial Perez withdrew from his plea agreement, although he still pleaded guilty. At the trial of Gonzalez, Rodriguez and Chavez, Perez testified as to his own involvement, but when asked about the involvement of the others, he stated that he was unable to remember the details.
In the end Gonzalez and Rodriguez were convicted on charges of conspiracy and attempt to possess cocaine. Chavez was convicted on the conspiracy charge. Perez pleaded guilty to a possession charge. Rodriguez received a downward adjustment because of his deportable status and was sentenced to 151 months. The other defendants were all sentenced to 235 months.
The defendants appeal, each bringing various challenges to the district court's evidentiary rulings and/or to their respective sentences. We review these challenges in turn.
Gonzalez, Rodriguez and Chavez argue that their convictions should be reversed because the initial stop of Perez violated his constitutional rights. They advance that Perez was stopped as a result of racial profiling. This argument must fail because no one other than Perez can establish standing to assert Perez's constitutional rights. See United States v. Jackson, 189 F.3d 502, 507-08 (7th Cir.1999).
This court does not accept the invitation to create an unprecedented exception to constitutional rules of standing based on Gonzalez, Rodriguez and Chavez's theory that racial profiling is "so contrary to the general welfare of America" as to warrant special standing considerations.
At trial Gonzalez testified about why he brought the truck to the warehouse. In Spanish he described the truck as "descompuesto." The interpreter translated this as "broken down." Seizing on this in cross-examination, the prosecution attempted to show that Gonzalez was lying. The prosecutor's questions were based on the theory that a "broken down" truck could not be driven and thus, since Gonzalez drove it, the truck could not have been "broken down." After the testimony the translator informed the judge that "broken down" was only a general translation of "descompuesto" and the Spanish phrase did not necessarily mean that the truck didn't work; instead it could mean that something was broken with the truck but it was still functional. Gonzalez requested that the court inform the jury of the interpreter's comments regarding the translation; the court refused. On redirect Gonzalez explained that the gears were dropping but that the truck could still operate.
Gonzalez, Rodriguez, and Chavez now challenge the district court's refusal to inform the jury of the interpreter's comments. We review the district court's evidentiary ruling for abuse of discretion. United States v. Thomas, 294 F.3d 899 904 (7th Cir.2002); United States v. Hook, 195 F.3d 299, 305 (7th Cir.1999). Translation of a foreign language is generally considered a factual question and entrusted to the jury. United States v. Zambrana, 841 F.2d 1320, 1335 (7th Cir.1988). A translation is sufficiently accurate if it "reasonably conveys the intent or the idea of the thought spoken." Id. at 1337. In this case the translation did just that. While the prosecutor questioning Gonzalez may have tried to snag Gonzalez by implying that "broken down" can only mean nonfunctional, this is simply not true. "Broken down," just like "descompuesto," has various degrees of interpretation including the implication of a poor but functional condition. As such it was proper for the district court to decline to explain the phrase to the jury and to instead allow the defense a redirect examination on the meaning of the term.
During trial Gonzalez's wallet was introduced into evidence and sent back with the jury. After the trial it was discovered that the wallet contained a business card bearing the name of Chavez's attorney. Neither Chavez nor Gonzalez was informed that the wallet contained this business card when it was sent to the jury. Chavez and Gonzalez bring separate challenges relating to this business card.
Chavez claims there was a Sixth Amendment violation because the business card was evidence introduced to the jury and he did not have a chance to confront this evidence. He argues that this evidence was crucial in the jury's finding against him because it tied him to the conspiracy. Although it found that the inclusion of the business card in Gonzalez's wallet was a Sixth Amendment violation, the district court ruled that the error was harmless.
While the government urges us to part from the district court...
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