U.S. v. Sanchez
| Decision Date | 28 March 1991 |
| Docket Number | Nos. 89-2432,89-2433,s. 89-2432 |
| Citation | 928 F.2d 1450 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alicio M. SANCHEZ (89-2432) and Reinaldo Cubilla (89-2433), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Kathleen Moro Nesi, Asst. U.S. Atty. (argued), Detroit, Mich., James A. Brunson, Asst. U.S. Atty., Bay City, Mich., for plaintiff-appellee.
Robert J. Rhead, Midland, Mich., Richard O. Milster (argued), Patterson, Gruber, Kennedy, Gill & Milster, Bay City, Mich., for Sanchez.
Richard O. Milster (argued), Patterson, Gruber, Kennedy, Gill & Milster, Bay City, Mich., David G. Myers, Caro, Mich., for Cubilla.
Before MARTIN and BOGGS, Circuit Judges, and ENGEL, Senior Circuit Judge.
Reinaldo Cubilla and Alicio Sanchez appeal their convictions for conspiracy to possess with intent to distribute over five kilograms of cocaine in violation of 21 U.S.C. Sec. 846. On appeal defendants challenge the lack of individual interpreters, the jury instructions relating to the conspiracy, and the application of the Federal Sentencing Guidelines. We affirm both convictions but remand both cases to the district court for resentencing.
On October 19, 1988, a federal grand jury in Bay City, Michigan returned a three-count indictment naming Reinaldo Cubilla and Alicio Sanchez. Also named in the indictment were Candido Alvarez, Felix Santana, a/k/a Felito, and Joaquine Diaz, Jr. Count one alleged that all five individuals conspired to possess with intent to distribute over five kilograms of cocaine between approximately June 15, 1987 and August 25, 1988. Neither Cubilla nor Sanchez were named in counts two or three of the indictment.
On April 21, 1988, Drug Enforcement Administration agents James O'Brien and Renee Triplett were monitoring inbound and outbound passengers at the Detroit Metropolitan Airport. Agent O'Brien observed Alicio Sanchez and noticed his actions were inconsistent with many of the other travelers he normally observed. Both agents also observed Gilberto Estevez enter the terminal from a Northwest Airlines flight from Miami, Florida. Estevez walked up to Sanchez, nodded slightly in recognition, and the two men walked away together. The two men never spoke or shook hands. Estevez was carrying a duffel bag over his shoulder. The two men left the airport building together and headed towards the parking area.
Agent Triplett walked up to Estevez and spoke to him. Sanchez continued walking and was followed by Agent O'Brien. Estevez did not object to Agent Triplett's request to search his duffel bag and she began searching the bag when she found a package wrapped in tape. At this point, Estevez dropped the duffel bag from his shoulder and took off running. After a short chase, Estevez was apprehended. Sanchez was also apprehended by Agent O'Brien while trying to escape in an automobile driven by his girlfriend, Rosa Hidalgo.
Further search of Estevez's duffel bag revealed a second package, also wrapped in tape. These two packages contained approximately one kilogram of cocaine. All three individuals were taken into custody and interviewed by Spanish-speaking agents of the United States Immigration and Naturalization Service. During the interview Sanchez told the agents that 1165 Coldwater, Flint, Michigan, was his current address. Both Sanchez and his girlfriend were released from custody while Estevez was held.
This did not end the agents' investigation. Based upon information obtained from questioning Estevez and Sanchez, a search warrant was obtained for Apartment 619 of the Sugar Tree Apartments in Mt. Morris, Michigan. Evidence seized from this apartment included a loaded .357 revolver, approximately $150 in cash, an apartment lease from Sugar Tree Apartments in the name of Reinaldo Cubilla, a triple beam scale with cocaine residue, approximately 31 zip-loc bags, each containing a small quantity of cocaine, and a paging device.
With this information and other information gathered from the investigation, a search warrant for 1165 Coldwater was obtained. The apartment appeared to have been vacant and had no signs of recent habitation. The agents did find a crumpled-up Miami bank deposit slip for $5,000, dated August 10, 1987, bearing the name of Candido Alvarez. Later investigation identified Candido Alvarez as the leader of the venture in which Sanchez and Cubilla were involved. Candido Alvarez was tried separately and convicted on all three counts of the indictment. Alvarez's conviction was recently affirmed by this court. United States v. Alvarez, 927 F.2d 300 (6th Cir.1991).
The trial of Cubilla and Sanchez began on September 18, 1989. On September 21, the jury found both defendants guilty as charged. Cubilla received a sentence of fifteen and a half years incarceration, five years supervised release, plus a fifty dollar special assessment fee. Sanchez received a sentence of seventeen and a half years incarceration, five years supervised release, plus a special assessment fee of fifty dollars. While the Sentencing Guidelines speak in terms of months, the shift to years makes the time to be served clearer.
At trial, Alice Alvarez, the wife of Candido Alvarez, testified extensively as to the involvement of Cubilla and Sanchez in her husband's cocaine trafficking organization. Joaquine Diaz, Jr., the son of Alice Alvarez, also testified that Cubilla and Sanchez were friends of his step-father. Gilberto Estevez, who was apprehended at the Detroit Airport, also testified as to Cubilla and Sanchez's involvement with Candido Alvarez in cocaine trafficking.
On appeal, both Sanchez and Cubilla contend that their rights under the Court Interpreters Act, 28 U.S.C. Secs. 1827-28, and the sixth amendment were violated because each was not provided with an individual interpreter throughout the trial. Specifically, defendants allege that the district court erred when the court borrowed one of the two interpreters available to the defendants to act as an interpreter for a government witness, Gilberto Estevez, who speaks only Spanish. This left Sanchez and Cubilla to share the remaining interpreter when communicating with counsel. This, defendants argue, prevented each from effectively communicating with counsel during a critical stage of their trial.
We begin with defendants' contention that the Court Interpreters Act, 28 U.S.C. Sec. 1827 (Supp.1990), requires that a defendant be provided with "continuous translation throughout the proceedings." The Act provides:
(d)(1) The presiding judicial officer, with the assistance of the Director of the Administrative Office of the United States Courts, shall utilize the services of the most available certified interpreter, or when no certified interpreter is reasonably available, as determined by the presiding judicial officer, the services of an otherwise qualified interpreter, in judicial proceedings instituted by the United States, if the presiding judicial officer determines on such officer's own motion or on the motion of a party that such party (including a defendant in a criminal case), or a witness who may present testimony in such judicial proceedings--
(A) speaks only or primarily a language other than the English language; or
(B) suffers from a hearing impairment (whether or not suffering also from a speech impairment)
so as to inhibit such party's comprehension of the proceedings or communication with counsel or the presiding judicial officer, or so as to inhibit such witness' comprehension of questions and the presentation of such testimony.
Section 1827(f)(1) permits any individual who is entitled to an interpreter the right to waive such interpretation, if such waiver is made after consultation with an attorney and approved by the presiding judicial officer. 28 U.S.C. Sec. 1827(f)(1) (Supp.1990).
There is nothing in the language of the Act or in the legislative history which requires every defendant in a multi-defendant criminal action be provided with his own individual interpreter. To the contrary, the Act itself authorizes the use of a single interpreter in multi-defendant cases. Section 1828(a) directs the United States Courts to establish a program to "provide a capacity for simultaneous interpretation services in multi-defendant criminal actions...." The House Report states:
It is the committee's intent that all interpretations are to be made in the consecutive mode except in those limited situations where the court determines, and all the parties agree, that simultaneous or summary mode will aid in the efficient administration of justice. The use of simultaneous interpretation is authorized to deal with two situations: first, in cases where the services of a manual (sign language) interpreter are to be utilized, and second, in multi-defendant criminal ... actions.
H.R.Rep. No. 1687, 95th Cong., 2d Sess. 7-8, reprinted in 1978 U.S.Code Cong. & Admin.News 4652, 4658-59 (emphasis added). "Simultaneous translation requires the language interpreter to translate and to speak contemporaneously with the individual whose communication is being translated." United States v. Bennett, 848 F.2d 1134, 1140 n. 7 (11th Cir.1988). Every circuit which has addressed this issue has concluded that the Act does not require every defendant in multi-defendant cases be provided with his own personal interpreter. See, e.g., United States v. Bennett, 848 F.2d 1134 (11th Cir.1988); United States v. Moya-Gomez, 860 F.2d 706, 740 (7th Cir.1988); United States v. Lim, 794 F.2d 469 (9th Cir.), cert. denied sub nom. Ahn v. United States, 479 U.S. 937, 107 S.Ct. 416, 93 L.Ed.2d 367 (1986).
Our inquiry as to a district court's decision concerning the appropriate use of interpreters in the courtroom focuses upon whether the purposes of the Act were adequately met. Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir.1989) (citing United States v. Lim, 794 F.2d 469,...
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