USA v. Pavel Leiva
Filing
Filed opinion of the court by Judge Bauer. AFFIRMED. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and David F. Hamilton, Circuit Judge. [6746787-1] [6746787] [15-1930]
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In the
United States Court of Appeals
For the Seventh Circuit
No. 15-1930
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PAVEL LEIVA,
Defendant-Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:13-cr-30059-RM-TSH-1 — Richard Mills, Judge.
ARGUED JANUARY 13, 2016 — DECIDED APRIL 29, 2016
Before WOOD, Chief Judge, and BAUER and HAMILTON,
Circuit Judges.
BAUER, Circuit Judge. Defendant-appellant, Pavel Leiva,
appeals his conviction for conspiracy to possess and use
counterfeit credit cards with intent to defraud in violation of 18
U.S.C. §§ 1029(a)(1), 1029(a)(3), and 1029(b)(2), and possession
of fifteen or more counterfeit credit cards with intent to
defraud in violation of 18 U.S.C. § 1029(a)(3). Leiva’s first two
arguments stem from translation issues that arose during both
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a traffic stop that resulted in a search of Leiva’s car and his
subsequent trial. Leiva, a Florida resident who is from Cuba
and only speaks Spanish, contends that the translation issues
led to an unauthorized search of his car. This search yielded
the majority of the physical evidence used against him at trial.
He also contends that translation issues with the interpreter
during his trial testimony violated both his due process rights
and the Court Interpreter’s Act, 28 U.S.C. § 1827 (the “CIA”).
Leiva’s final argument is that the district court did not make
sufficient findings of fact to support the imposition of supervised release. We reject all three arguments and affirm Leiva’s
conviction and sentence.
I. BACKGROUND
Leiva, Amberly Martin, and Paola Gallego hatched a
scheme: Leiva would supply Martin and Gallego with fraudulent credit cards and the women would use the cards to
purchase merchandise. On June 21, 2013, the three flew from
Miami, Florida to Milwaukee, Wisconsin to execute their plan.
Upon arriving in Milwaukee, Leiva rented a white Hyundai
Elantra, and proceeded to chauffeur Martin and Gallego
around Wisconsin and Illinois. From June 22 through June 26,
the women, operating under the names “Geena Rose” and
“Sandra Vega,” engaged in a spending spree at various stores
using the cards that Leiva had provided. The women bought
cell phones, iPad minis, and gift cards, as well as personal
items for themselves such as women’s shoes, purses, and
wallets. On June 26, the three were driving on Interstate 55
through Springfield, Illinois, destined for St. Louis, Missouri.
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A. The Traffic Stop
Illinois State Trooper Dustin Weiss was on duty that day,
parked in an unmarked patrol car in the median of the highway. He saw the white Hyundai Elantra pass him, slow down
below the posted speed limit, and shift from the center lane to
the right lane. Weiss observed the driver of the car attempt to
hide himself as he changed lanes. Wanting to investigate
further, Weiss pulled into traffic behind the Elantra. He then
observed the driver move around within the car, and saw the
car swerve onto the shoulder of the highway and then swerve
back into the right lane. Weiss pulled over the car for improper
lane use, and parked his patrol car twenty to twenty-five feet
behind the Elantra.
While in his patrol car, Weiss conducted a check on the
license plate and found that the Elantra was a rental. He exited
his car and approached the Elantra on the passenger side.
When he reached the Elantra, he identified himself, explained
why he had pulled over the car, and asked some initial
questions. Leiva did not respond to Weiss’ questions; instead,
he handed Weiss his driver’s license and rental car agreement.
Leiva also said something in Spanish to Gallego, who was in
the front passenger seat. Gallego told Weiss that Leiva did not
speak English. Weiss, who does not speak Spanish, asked
Gallego to explain to Leiva why he had stopped the car, and
that he was only going to issue Leiva a warning.
Weiss then returned to his patrol car to perform computer
checks on the car and Leiva. After running the checks, Weiss
used his loudspeaker to ask, “Can you have the driver come
back to my vehicle?” Leiva exited the Elantra, walked to Weiss’
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patrol car, opened the front passenger door, and sat in the
front passenger seat. Martin and Gallego remained in the
Elantra.
In the patrol car, Weiss again attempted to communicate
with Leiva, but Leiva did not respond. Weiss noticed that the
carotid artery in Leiva’s neck was beating at a fast rate, his
forehead was sweaty, his stomach was visibly pulsating, and
his hands were shaking. When Leiva did not respond, Weiss
obtained some prepared Spanish translations of questions that
were on a sheet in the patrol car. He asked Leiva about his
travels. After this questioning, Weiss went to the Elantra, and
spoke with Gallego about the trip. When he returned to the
patrol car, Weiss completed a written warning for Leiva, and
had Leiva sign it. Weiss handed Leiva the warning, the rental
agreement, and Leiva’s license. Weiss then entered the phrase
“You are free to go” into the iTranslate application on his
iPhone, and read the translated Spanish to Leiva.
As Leiva began to exit the patrol car, Weiss said, “Un
momento,” and asked in English if he could speak with Leiva
further. Leiva did not respond; he only stopped and looked at
Weiss. Weiss asked, “Puedo buscar su coche?” which Weiss
believed meant, “May I search your car?” Leiva said, “Yes,” in
English, nodded, and then said, “Sí.” Weiss asked, “Sí?” and
Leiva again said, “Sí.”
By this time, other state troopers had arrived on the scene,
as had state police agents. Weiss searched the Elantra with
their assistance. Leiva stood by the patrol car unrestrained
during the search. In the car, the officers found 65 fraudulent
credit cards, five iPad minis, women’s purses, mail and store
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receipts, and five Walmart gift cards. They also found four
typewritten pages containing credit card numbers, expiration
dates, and the names and addresses of the actual cardholders.
Gallego later testified that these were probably Leiva’s notes.
B. The Suppression Hearing
Leiva, Martin, and Gallego were indicted for both conspiracy to possess and use counterfeit credit cards with intent to
defraud and possession of at least fifteen counterfeit credit
cards with intent to defraud. Martin and Gallego pleaded
guilty, but Leiva went to trial. Both Martin and Gallego
testified for the prosecution at Leiva’s trial.
Leiva moved to suppress the evidence confiscated during
the search of the Elantra. Weiss testified at the suppression
hearing, as did Martin and Gallego. Notably, Leiva offered no
contradiction of Weiss’ account. When cross-examined, Weiss
admitted that he did not ask either Gallego or Martin to
translate regarding consent to search. He also testified that he
did not ask any other officer to help him with his Spanish and
that he did not use the iTranslate application to get the phrase,
“Puedo buscar su coche?”1
At the hearing, Martin and Gallego testified that Leiva was
the ringleader of the scheme. As the magistrate judge noted,
1
The government additionally argues that, had Weiss used the iTranslate
application for translation, the application would have translated “May I
search your car?” as “Puedo buscar su coche?” The government thus argues
that Weiss acted in good faith, and that the search was valid under United
States v. Leon, 468 U.S. 897 (1984), and its progeny. But because, as detailed
below, we hold that Leiva consented to the search of his car, we do not
address this good faith argument.
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the two women testified that Leiva “supervised” them, “told
them what to buy[,] and watched them as they did so.”
Further, Leiva stored the stolen goods in the trunk of the
Elantra and forbade the women from opening the trunk
without his permission. He also stored the stolen cards in the
glove box. The women further testified that when Weiss pulled
over the Elantra, Leiva told them to give him the fake driver’s
licenses that he had made for them. He also instructed Gallego
to get the rental agreement from the glove box and told both
women to say nothing.
Leiva called three expert witnesses who stated that “Puedo
buscar su coche?” does not mean, “Can I search your car?” All
three witnesses stated that “Puedo buscar su coche?” means
“May I look for your car?”, “May I get your car?”, or “May I
locate your car?” It does not indicate a question regarding a
search of the interior of the car. Rather, the proper phrase for
“May I search [the interior of] your car?” would be “Puedo
revisar su carro?” or “Puedo registrar su carro?” One expert
testified that if Weiss had said, “Puedo buscar en su coche?”, a
native Spanish speaker may have understood the phrase to
mean “May I search inside your car?”
Although determining that Weiss’ Spanish phrase was not
properly phrased, the magistrate judge still found that Leiva
had consented to the search and that both the search and
subsequent seizure of evidence in the car were proper, and
recommended that the district court deny Leiva’s motion to
suppress. The district court adopted the recommendation and
denied the motion to suppress.
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C. The Trial
At trial, Leiva contested Martin’s and Gallego’s story that
he had coordinated the operation. Instead, he claimed that he
was a patsy who had no knowledge of the women’s scheme.
He claimed that Martin and Gallego only spoke English to one
another and that, because he only speaks Spanish, he did not
understand what they were doing. He was therefore unwittingly ensnared in their fraud conspiracy. He denied knowing
that the cards were counterfeit and that any items were
purchased illegally, and he denied recruiting the women,
coordinating the scheme, and directing them in any way.
Martin and Gallego testified, as they had at the suppression
hearing, that Leiva had indeed coordinated everything.
Leiva testified on the fifth day of his trial, with the aid of
two interpreters. His defense counsel told him to raise his hand
while testifying if he had difficulty understanding any questions. He says that he had no difficulties with the first interpreter, who translated for him in the morning. By contrast, he
notes multiple problems with the second interpreter, who
began translating after the lunch break. This interpreter had
also translated on the second, third, and fourth days of the
trial. There are various moments where difficulty with translation arose. For example, during direct testimony, Leiva was
asked about a video of one of the retail transactions, and the
following exchange occurred:
Q. Do you see … yourself in this video?
A. Yes.
Q. Okay. What are you wearing?
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THE INTERPRETER: Sorry. He said “the telephone” and
said[,] “[W]hat are you wearing[?]”
Q. Okay.
THE INTERPRETER: And he said[,] “[S]orry about that.”
He didn’t understand that question.
Q. Okay. What are you wearing?
THE INTERPRETER: He says white pull-over. And he’s
saying something that I don’t—pants.
Q. Okay … .
So what are you doing right here? Do you remember?
THE INTERPRETER: He’s with his cellular. He says, “I’m
with my cellular. I’m using my cellular.”
Q. Okay. You’re using your phone?
THE INTERPRETER: He’s just looking.
A. I’m just looking what’s in there.
Other translation issues occurred, including when the
interpreter summarized Leiva’s words as opposed to giving a
simultaneous, verbatim translation. Defense counsel requested
and the court granted a sidebar, where the following colloquy
occurred:
[DEFENSE COUNSEL]: Your Honor, this is not working
very well. I don’t know that she’s translating correctly,
or—it just seems a lot rougher than this morning.
[DEFENSE CO-COUNSEL]: It doesn’t seem to be a realtime translation. It seems to be more of like listening to
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blocks of what he says and then paraphrasing what he says.
As opposed to this morning where the interpreter was
interpreting his actual words in real-time.
I don’t know how we can do that here, other than maybe to
go very slowly and ask the interpreter to interpret his
actual words.
THE COURT: Okay. You’re going to have to be very close
and you have to make them short. And then get the
translation. Don’t run into [a] long, rambling preamble. It’s
got to be precise.
[DEFENSE COUNSEL]: Okay.
[DEFENSE CO-COUNSEL]: Could the Court instruct her to
interpret his actual words?
THE COURT: Do you have a problem with that?
[GOVERNMENT COUNSEL]: No, Judge.
THE COURT: Okay.
…
So let’s keep our questions short so that the answer can be
short.
And Ms. [Interpreter], please translate exactly what he is
saying, as well as the question.
THE INTERPRETER: Yes, Your Honor, I will.
THE COURT: So it is crisp and clear; each one.
THE INTERPRETER: Yes, Your Honor.
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The government later objected that defense counsel was
asking leading questions on direct examination. The following
colloquy occurred:
[DEFENSE COUNSEL]: I’m trying, Judge.
THE COURT: Well, this is difficult, [government counsel].
[GOVERNMENT COUNSEL]: I understand, Your Honor.
THE COURT: We’re involving two languages here. And it
is quite difficult. So we’ll do the best we can. And I think
that [defense counsel] is trying to do exactly that.
Let’s take it slow.
Direct examination continued without further issue. During
cross-examination, Leiva raised his hand, denoting that he did
not understand the question. His counsel requested a sidebar,
which the court granted.
[DEFENSE COUNSEL]: We had asked Mr. Leiva to raise
his hand if he had a problem with understanding what the
interpreter said. He’s raising his hand now. So … I don’t
know how we can address that.
THE COURT: … [W]hy don’t we re-ask the question. You
want the Court Reporter to do it[?]
[GOVERNMENT COUNSEL]: Your Honor, I can withdraw
that question … . [T]his might be a good time to straighten
out the problem with his understanding of the interpreter.
I don’t know if that’s just one question or whether it’s a
long-standing problem, but perhaps we could find out.
Because I notice that there is delay sometimes with the
questions I ask. I’m trying to be as short—
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THE COURT: You’re doing a good job.
[GOVERNMENT COUNSEL]:—and the response, because
he just keeps … talking. It’s not really the interpreter’s
fault.
THE COURT: I know, I know. But these things are very
difficult, if you’re not having this stuff coming in every
case … . Why don’t we take a break and perhaps you can
have a chat, both you and the Court Reporter. And find out
if he’s getting this … interpretation. If he understands it.
The court and counsel noted that the current interpreter
was from Guatemala, and was having trouble understanding
Leiva’s Cuban dialect. By contrast, the interpreter from the
morning, who was Venezuelan, “kn[ew] the Cuban dialect
very well.” But Leiva himself seemed to exacerbate the
problem by rambling often:
[GOVERNMENT COUNSEL]: … I think the problem is
more with him talking continuously and her trying to
interpret … . I’m trying to ask questions that would elicit a
yes/no, yes/no.
THE COURT: Slow and short.
[DEFENSE COUNSEL]: Would it be improper for us to tell
[Leiva] to shorten his answers? Is that proper?
THE COURT: I think it would be fine if you did that.
[DEFENSE COUNSEL]: Or at least if he’s going to give a
long answer, she should interpret parts of it.
THE COURT: Okay. Let’s … take a break and you can talk
to her about that.
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During the break, defense counsel consulted with Leiva.
Before the jury returned from their break, Leiva’s counsel
relayed the discussion to the district court.
[DEFENSE COUNSEL]: I spoke with Mr. Leiva and he does
have concerns with the interpretation. But I did explain two
things. That if he did not understand something, to say, “I
don’t understand.” And I told him not to answer a question
that he did not understand.
And then I also told him that … his answers need to be
interpreted in blocks. And so that he does not—
THE COURT: Ramble.
[DEFENSE COUNSEL]: Ramble, okay. So hopefully we’ll
be okay.
THE COURT: All right.
Defense counsel then cited § 1827(d)(2) of the CIA, which
allows the district court to require, upon motion, that the
proceedings be recorded. Defense counsel stated, “And my
understanding is that’s being done. And so I would just ask
that [the recording] continues to be done, so that if there are
any issues with interpretation, it’s being recorded and there’s
a permanent record of it.” Defense counsel then asked the
court if this request made sense. The court responded affirmatively, “Oh yes, it makes a great deal of sense. And perfectly
good sense.”
The court, the court clerk, and the parties then determined
how to optimize the sound for the recording. The court
instructed the interpreter to use a handheld microphone,
while Leiva would use the microphone affixed to the witness
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stand. Cross-examination, re-direct examination, and re-crossexamination followed without further interruption.
The jury convicted Leiva of both conspiracy to commit
credit card fraud and possessing counterfeit credit cards. From
the conclusion of his testimony until the jury reached its
verdict, Leiva raised no concerns about the translation with the
court.
D. The Sentence
On April 10, 2015, the district court sentenced Leiva to
concurrent sentences of 60 and 82 months in prison for counts
one and two of his conviction. It also imposed two years of
supervised release upon completing the prison term, but
added that if Leiva paid the calculated $3,797.48 loss as
restitution within one year, supervised release would end
early. Leiva argued against supervised release, saying that he
had complied with all of the conditions of pre-trial release. The
district court rejected this argument, reasoning that “many
defendants abide by such conditions,” and that “supervised
release is still imposed at sentencing in the overwhelming
majority of those cases.”
In pronouncing its sentence, the district court explained its
rationale. It recognized Leiva’s lack of a criminal history as a
mitigating factor. However, Leiva’s failure to accept responsibility for his actions—as Martin and Gallego had done—was an
aggravating factor for the court, as was his willingness to lie
about his involvement with the scheme while testifying. The
district court noted that had Leiva cooperated, the court
“perhaps … would have weighed that factor very heavily.”
The district court stated that while Leiva has elderly parents
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and multiple children for whom he is responsible, these
familial considerations were not “extraordinary factor[s] which
warrant[] a sentence reduction in this case.” Leiva’s crime, in
the district court’s words, was “serious”: it was part of a “very
sophisticated scheme” that “put significant amounts of credit
at risk.” Leiva “recruited and supervised” Martin and Gallego
and “never accepted responsibility.” As a result, the court
refused to lower his sentence based on family considerations.
In imposing supervised release specifically, the district
court discussed Leiva’s lack of a criminal history, as well as the
need to provide restitution: “You don’t have any criminal
history, Mr. Leiva, so if you pay your restitution obligation
within one year, I’ll let you off early. One year; you won’t have
to serve that second year of supervised release.”
II. DISCUSSION
On appeal, Leiva first argues that he did not consent to the
search of his car and that the district court erred by not
suppressing the evidence seized during this search. Second, he
argues that the district court violated both his constitutional
right to testify as well as the CIA by failing to replace the
interpreter during the afternoon portion of his testimony.
Finally, he argues that the district court did not sufficiently
explain its reasoning for imposing supervised release. We
disagree with all three arguments.
A. Motion to Suppress Properly Denied
First, the district court did not err in finding that Leiva had
voluntarily consented to the search of the Elantra and denying
Leiva’s motion to suppress. Determining whether a person has
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consented to a search by law enforcement is a finding of fact,
and we review the district court’s findings of fact for clear
error. See United States v. Gonzalez-Ruiz, 794 F.3d 832, 835 (7th
Cir. 2015) (citation omitted); see also United States v. Wilbourn,
799 U.S. 900, 908 (7th Cir. 2015) (when reviewing order
regarding motion to suppress, this court “review[s] the district
court’s factual determinations for clear error” (citation omitted)). Here, the findings of the magistrate judge and the district
court were not clearly erroneous.
A police officer may search an automobile without a
warrant if “there is probable cause to believe it contains
evidence of criminal activity,” if there is reasonable suspicion
that an occupant of the car possesses or the car itself contains
accessible weapons, or if the occupant of the car consents to the
search. United States v. Charles, 801 F.3d 855, 860 (7th Cir. 2015)
(citing Arizona v. Gant, 556 U.S. 332, 347 (2009)) (probable cause
is an exception to warrant requirement); see also Terry v. Ohio,
392 U.S. 1, 30 (1968) (reasonable suspicion sufficient to search
person for weapons); Michigan v. Long, 463 U.S. 1032, 104950
(1983) (reasonable suspicion sufficient to search car for weapons); Schneckcloth v. Bustamonte, 412 U.S. 218, 219 (1973) (“one
of the specifically established exceptions to the requirements of
both a warrant and probable cause is a search that is conducted
pursuant to consent”). Here, Leiva’s consent is particularly
important, because Weiss did not have either probable cause
or reasonable suspicion to search Leiva’s car.
Leiva does not challenge that Weiss had probable cause to
believe that Leiva had committed a traffic violation, specifically
improper lane use. See 625 ILCS 5/11-709(a) (detailing im-
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proper “[d]riving on roadways laned for traffic”). But Weiss
did not articulate sufficient facts that establish reasonable
suspicion for anything beyond the traffic violation. See United
States v. Riney, 742 F.3d 785, 788 (7th Cir. 2014) (citing Terry,
392 U.S. at 30) (reasonable suspicion must be “based on
articulable facts that a crime is about to be or has been committed” (quotation marks and other citations omitted)). Without
such facts, he cannot demonstrate reasonable suspicion to
search Leiva’s car, and also cannot meet the higher standard of
probable cause. See Florida v. J.L., 529 U.S. 266, 272 (2000)
(citation omitted) (probable cause is higher standard than
reasonable suspicion); United States v. Brown, 366 F.3d 456, 458
(7th Cir. 2004) (citation omitted).
Weiss claimed that Leiva’s apparent nervousness created
reasonable suspicion; Weiss noted that the carotid artery in
Leiva’s neck was beating at a fast rate, that Leiva’s forehead
was sweaty, that his stomach was pulsating, and that his hands
were shaking. But we and other circuits have held that nervousness alone is insufficient to support a finding of probable
cause or reasonable suspicion. See Huff v. Reichert, 744 F.3d 999,
1007 n.3 (7th Cir. 2014); United States v. Brown, 188 F.3d 860, 865
(7th Cir. 1999). Yet consent trumps a lack of reasonable
suspicion or probable cause, and allows for a valid search
without a warrant. See Schneckcloth, 412 U.S. at 219; Vinson v.
Vermilion County, Illinois, 776 F.3d 924, 929 (7th Cir. 2015). We
determine consent to search by assessing the totality of the
circumstances. See United States v. Drayton, 536 U.S. 195, 20607
(2002) (citing Schneckcloth, 412 U.S. at 227, and Ohio v. Robinette,
519 U.S. 33, 3940 (1996)); United States v. Rahman, 805 F.3d 822,
832 (7th Cir. 2015) (citations omitted).
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Even accepting that Weiss’ Spanish question does not mean
exactly what he intended, the district court was not clearly
erroneous in finding that based on the totality of the circumstances Leiva voluntarily consented to the search. The magistrate judge found that, as in similar consent to search cases, “it
was clear that the officer did not need to search for or locate
the car. Rather, it was clear that the officer was asking permission to search the car.” The magistrate judge determined that
“Leiva understood that Weiss was asking permission to take an
action with respect to the Hyundai [Elantra],” because Leiva
responded to Weiss’ question “without hesitation” and did not
seem “boggled by the question as nonsensical.”
In accepting the recommendation of the magistrate judge,
the district court also cited Leiva’s immediate response to
Weiss and his lack of confusion at the question. It further stated
that it would be unreasonable for Leiva to think that Weiss
wanted to find or locate Leiva’s car: “Because the rental car
had not been moved since the traffic stop, there was no reason
for the officer to ask the Defendant if he could ‘locate’ or ‘look
for’ a car that was 20 to 25 feet away from them.” The district
court also noted that Leiva’s actions towards Martin and
Gallego—telling them to give him their fake licenses and to be
quiet—“suggest[ed] that [Leiva] was afraid that evidence of
illegal activity might be discovered if a search was conducted.”
These actions indicated to the district court that Weiss had
asked for consent to search Leiva’s car and Leiva had given
consent to search.
Based on the totality of circumstances as found in the
record, we see nothing that compels the finding of consent
clearly erroneous.
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B. Translation Issues
Second, the district court did not err by not replacing the
Spanish interpreter employed during the afternoon of Leiva’s
trial testimony. Leiva argues that the court’s failure to do so
violated his right to testify under the Due Process clause and
his rights under the CIA. We find that the translation was
competent and did not violate Leiva’s due process, and that the
circumstances did not mandate the replacement of the afternoon interpreter.
1. Distinction Between Due Process Claim and CIA
Claim
Before analyzing the facts, we bifurcate Leiva’s overall
argument into a constitutional claim and a statutory claim. As
a threshold matter, we note that Leiva had a constitutional
right to competent translation of his testimony at trial. A
criminal defendant has the constitutional due process right to
testify on his behalf. See Rock v. Arkansas, 483 U.S. 44, 51 (1987);
Starkweather v. Smith, 574 F.3d 399, 403 (7th Cir. 2009). Further,
we have noted that “[a] criminal defendant is denied due
process when he is unable to understand the proceedings due
to a language difficulty.” Mendoza v. United States, 755 F.3d 821,
827 (7th Cir. 2014) (citing United States v. Johnson, 248 F.3d 655,
663 (7th Cir. 2001), and United States v. Cirrincione, 780 F.2d 620,
634 (7th Cir. 1985)).
Indeed, the reciprocal of Mendoza is true: a defendant has
the due process right to be understood at trial. See Johnson, 248
F.3d at 663; Cirrincione, 780 F.2d at 634. The CIA is a prophylactic statutory measure designed to protect a criminal defendant’s due process right to testify and to have his testimony
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competently translated. The CIA’s purpose is “to ensure that
the defendant can comprehend the proceedings and communicate effectively with counsel.” United States v. Febus, 218 F.3d
784, 791 (7th Cir. 2000) (citation omitted). It also ensures that
the defendant’s testimony is effectively translated, so that he
may be understood.
We separately analyze Leiva’s constitutional due process
claim and his statutory CIA claim. First, each claim has a
slightly different focus of review: the due process claim focuses
on the translation itself; the CIA claim focuses on the court’s
actions or omissions regarding the interpreter and her ability
to translate. Second, each claim has a different standard of
review. Leiva’s due process claim deals with a constitutional
right that we review de novo. See United States v. Lee, 795 F.3d
682, 685 (7th Cir. 2015) (“constitutional arguments … receive
de novo review” (citation omitted)). We review the CIA claim—
specifically the district court’s unwillingness to replace the
interpreter—for abuse of discretion. United States v. Sandoval,
347 F.3d 627, 632 (7th Cir. 2003) (citing Johnson, 248 F.3d at 661).
The district court did not err in regard to either issue.
2. Due Process Claim
First, the district court did not violate Leiva’s due process
right to a competent translation of his testimony. A district
court denies a criminal defendant due process where “the
accuracy and scope of a translation at a hearing or trial is
subject to grave doubt.” Cirrincione, 780 F.2d at 634; see also
United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir. 1990) (the
“basic constitutional inquiry” when determining competency
of translation is “whether any inadequacy in the interpretation
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made the trial fundamentally unfair” (quotation marks and
citations omitted)). Here, while the transcript evidences
hiccups in the interpreter’s translation of Leiva’s testimony, the
overall translation does not create such grave doubt as to
render Leiva’s trial unfair.
Leiva’s theory at trial was that Martin and Gallego devised
the scheme, and that he was ignorant of their plan. He testified
to this effect, saying that, for example, the two women only
spoke about their plan in English to one another and that he
could not understand these conversations. Simply put, he
claimed that he did not know what they were doing. Leiva
testified that he did not plan the scheme, had no intent to be
involved with any wrongdoing, and did not know that he was
an accomplice to Martin’s and Gallego’s fraud. He also denied
recruiting the women, denied coordinating the scheme, and
denied directing them in any way. All of these contentions are
clear from the transcript of his testimony.
Leiva’s due process right to competent translation is a right
to have an interpreter accurately convey his story. The translation of his testimony conveyed his story.
3. CIA Claim
While the translation passes constitutional muster, a closer
question is whether the district court abused its discretion by
not replacing the afternoon interpreter. District courts have
“wide discretion in implementing the Court Interpreter’s Act.”
Sandoval, 347 F.3d at 632 (citation omitted). We are deferential;
any preference of the appellate court is not binding. See United
States v. Abair, 746 F.3d 260, 269 (7th Cir. 2014) (appellate
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review of evidentiary rulings “is deferential; we only look for
an abuse of discretion” (citations omitted)).
We review to ensure that the district court’s actions enabled
Leiva’s testimony to be understood. See Mendoza, 755 F.3d at
827; Johnson, 248 F.3d at 663; Febus, 218 F.3d at 791; Cirrincione,
780 F.2d at 634. Here, the district court took every action short
of replacing the interpreter to ensure that the jury understood
Leiva’s testimony.
Examples abound of the district court’s attentiveness to the
concerns that the situation presented. First, when defense
counsel complained at sidebar that the interpreter was summarizing and paraphrasing Leiva’s testimony rather than providing a simultaneous translation, the court emphasized succinctness and precision in counsel’s questions: “You’re going to
have to be very close and you have to make them short. And
then get the translation. Don’t run into [a] long, rambling
preamble. It’s got to be precise.” Additionally, the court
instructed the interpreter to be precise as well, telling her to
“translate exactly what he is saying, as well as the question,”
and to make the translation “crisp and clear; each one.”
Second, when government counsel complained that defense
counsel was asking Leiva leading questions on direct examination, the district court noted the difficulty of the situation:
“We’re involving two languages here. And it is quite difficult.
So we’ll do the best we can.” The district court noted that
defense counsel was “trying to do” his best, yet further
admonished defense counsel to “take it slow.”
Third, the district court encouraged collaboration between
the parties. During cross-examination, when Leiva raised his
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hand to indicate that he did not understand what the interpreter was saying, the district court convened a sidebar to
address the problem. Defense counsel stated that Leiva did not
understand the question. The court advised the government to
re-ask the question; the government instead withdrew the
question and noted that “this might be a good time to
straighten out the problem with his understanding of the
interpreter.”
After the break, defense counsel reported that he had
explained two things to Leiva: first, “if he did not understand
something, to say, ‘I don’t understand’”; and second, to not
answer any questions that he did not understand. Counsel also
reported that he had advised Leiva not to ramble. Such actions
exemplify the collaboration between both sides that the district
court encouraged and facilitated.
Fourth, the district court reiterated the importance of the
recording of the proceedings, and made efforts to optimize the
recording. Defense counsel noted that Leiva was entitled to
a recording under § 1827(d)(2) of the CIA. Counsel knew that
the proceedings were already being recorded, and asked that
the recording continue, “so that if there are any issues with
interpretation, it’s being recorded and there’s a permanent
record of it.” The district court stated that this request made “a
great deal of sense,” and instructed the interpreter to use the
handheld microphone while Leiva used the microphone on the
witness stand. Importantly, Leiva and his counsel had access
to the recording and raised no issues with the translation after
Leiva’s testimony.
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These examples demonstrate multiple laudable actions of
the district court: it attended to the concerns of counsel; it
encouraged patience; it admonished Leiva not to ramble and
the interpreter to translate in real time; it encouraged counsel
to ask short, simple questions; it paused when necessary to
ensure that Leiva understood the translation; it ensured that
the testimony was recorded; and it arranged the courtroom to
optimize sound clarity. The district court responded practically
to each issue that arose, and collaborated with counsel to make
the best of a less than ideal situation. Further, as noted above,
the translation itself is clear. In light of the district court’s many
precautions and the ultimate translation produced, not
removing and replacing the interpreter was not an abuse of
discretion.
C. Supervised Release Properly Imposed
Finally, Leiva argues that the district court’s explanation for
imposing supervised release was insufficient. Specifically, he
argues that the district court committed procedural error by
only making one finding of fact pertaining to supervised
release: that Leiva’s compliance with the conditions of pre-trial
release did not prevent imposing supervised release. He argues
that such procedural error mandates remand for resentencing.
This argument, however, views the district court’s explanation
too narrowly.
Supervised release is part of the overall sentence. See 18
U.S.C. § 3583(a) (“The court, in imposing a sentence of imprisonment … may include as part of the sentence a requirement that
the defendant be placed on a term of supervised release”
(emphasis added)); United States v. Thompson, 777 F.3d 368, 373
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(7th Cir. 2015) (Section 3583 “dispel[s] … [a]ny doubt that
conditions of supervised release are a part of the sentence”). As
part of the sentence, the district court “must justify the conditions [of supervised release] … at sentencing by an adequate
statement of reasons.” United States v. Kappes, 782 F.3d 828, 845
(7th Cir. 2015) (citations omitted). Failure to “adequately
explain” a sentence is procedural error “that may require
remand.” United States v. Poulin, 745 F.3d 796, 800 (7th Cir.
2014) (citations omitted). We review such procedural errors
de novo. E.g., United States v. Grzegorczyk, 800 F.3d 402, 405 (7th
Cir. 2015) (citing United States v. Castro-Alvarado, 755 F.3d 472,
475 (7th Cir. 2014)). In our review, we analyze “the judge’s
comments at the entire sentencing hearing.” Kappes, 782 F.3d at
859.
The sentencing court’s explanation of the sentence must be
“reasonably related to the applicable [18 U.S.C.] § 3553(a)
factors.” Id. at 845 (citation omitted). However, this explanation
“need not be exhaustive.” United States v. Warner, 792 F.3d 847,
855 (7th Cir. 2015). The sentencing court only needs to engage
in a single overall discussion of the § 3553(a) factors that relates
to the entire sentence. See United States v. Sanchez, 814 F.3d 844,
849 (7th Cir. 2016); United States v. Eads, 729 F.3d 769, 78182
(7th Cir. 2013). The district court “must still explain” why it is
imposing supervised release and may only “address[] … a
single § 3553(a) factor,” but “it need not engage in a repetitive
rigorous discussion of the § 3553(a) factors.” Sanchez, 814 F.3d
at 849.
Under these parameters, the district court’s explanation for
imposing supervised release in this case was sufficient. In
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discussing the sentence as a whole, the district court noted
Leiva’s lack of a criminal history, deeming it a mitigating
factor. It deemed as aggravating factors his failure to accept
responsibility for his crimes and his willingness to lie on the
witness stand. It discussed Leiva’s family considerations, but
did not consider these “extraordinary factor[s] which warrant[]
a sentence reduction.” Leiva’s crime, his leadership role in the
scheme, and his unwillingness to accept responsibility superseded his family considerations in the district court’s view.
Regarding supervised release specifically, the district court
restated Leiva’s lack of a criminal history, but also noted the
need to make restitution. Both are § 3553(a) factors. See 18
U.S.C. §§ 3553(a)(1); 3553(a)(7). It also rejected Leiva’s argument that his comportment with conditions of pre-trial release
reduced the need for supervised release. The district court’s
explanation for imposing supervised release was brief, but
succinct; it adequately related the need for supervised release
to § 3553(a) factors. Particularly in the context of the entire
pronouncement at the sentencing hearing—which discussed
other § 3553(a) factors—the district court’s explanation for
supervised release was sufficient.
III. CONCLUSION
We AFFIRM Leiva’s conviction and sentence.
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