United States v. Jose Gutierrez

Filing

CORRECTED OPINION FILED - THE COURT: ROGER L. WOLLMAN, STEVEN M. COLLOTON and RAYMOND W. GRUENDER Original Opinion filed on: 07/08/2014 Correction to opinion: The opinion is corrected by universally removing the hyphen in the name "Perez-Sanchez" so that throughout the opinion the name reads "Perez Sanchez." [4172779] [12-4019, 13-1327]

United States Court of Appeals
For the Eighth Circuit
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No. 12-4019
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Jose Luis Rodriguez Gutierrez,
lllllllllllllllllllll Defendant - Appellant.
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No. 13-1327
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee.
v.
Manuel Perez Sanchez,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: November 22, 2013
Filed: July 8, 2014 (Corrected July 8, 2014)
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Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
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COLLOTON, Circuit Judge.
Jose Rodriguez Gutierrez and Manuel Perez Sanchez were charged together
with drug trafficking offenses. Rodriguez Gutierrez pleaded guilty to one count of
conspiracy to distribute methamphetamine, and Perez Sanchez was convicted by a jury
on one count of conspiracy to distribute and five counts of distribution or possession
with intent to distribute. Perez Sanchez received a sentence of 60 months’
imprisonment on each count, to be served concurrently. He appeals two evidentiary
rulings by the district court1 and the sufficiency of the evidence to support his
conviction. The district court2 sentenced Rodriguez Gutierrez to 156 months’
imprisonment, and he appeals the district court’s computation of the advisory range
under the sentencing guidelines.
Law enforcement officers in Des Moines began an investigation in late 2011
into the distribution of so-called “ice” methamphetamine in the area.3 They identified
Rodriguez Gutierrez and Perez Sanchez as participants in the trafficking. Over several

1

The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
2

The Honorable Ronald D. Longstaff, United States District Judge for the
Southern District of Iowa.
3

The United States Sentencing Guidelines define “ice” methamphetamine as “a
mixture or substance containing d-methamphetamine hydrochloride of at least 80%
purity.” USSG § 2D1.1(c) n.(C).
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months of investigation, officers arranged multiple controlled purchases from
Rodriguez Gutierrez and Perez Sanchez. Both men were arrested and charged in May
2012. Rodriguez Gutierrez pleaded guilty, while Perez Sanchez proceeded to a trial
at which he was convicted.
I.
Perez Sanchez complains that the district court abused its discretion at trial by
allowing a witness for the prosecution to testify as an expert. Steven Rhodes testified
that he had reviewed Spanish-language audio recordings of controlled drug
transactions involving Perez Sanchez and prepared written transcripts of the dialogue
in English. The district court permitted Rhodes to testify as an expert after Rhodes
detailed his qualifications. Rhodes stated that he was fluent in Spanish, received a
minor degree in Spanish in college, attended an interpreter orientation class in Iowa
in 2007, and passed written and oral examinations to become a state-certified
interpreter in Iowa in 2008. Rhodes roughly defined “translation” as taking a
recording and typing up a transcript, and “interpretation” as the oral process of
converting words from Spanish to English. He said that he was certified in Iowa for
both translation and interpretation and that he had testified 25 to 30 times in Iowa state
court, including on some occasions that involved “translations” from Spanish to
English.
Perez Sanchez asserts that Rhodes was not qualified to testify as an expert
“translator,” because his certification in Iowa was limited to work as an oral language
interpreter, and he was not certified by any organization as a translator. He relies on
the Supreme Court’s decision in Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct.
1997 (2012), which construed the phrase “compensation of interpreters” in a federal
statute concerning the award of costs to prevailing parties, 28 U.S.C. § 1920. The
Court concluded that while “the word ‘interpreter’ can encompass persons who

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translate documents,” 132 S. Ct. at 2004, the ordinary or common meaning of
“interpreter” does not include those who translate writings. Id. at 2003.
Under Federal Rule of Evidence 702, a witness may be “qualified as an expert
by knowledge, skill, experience, training, or education.” Whether a witness is
formally certified in a field by a professional organization may be relevant to his
expertise, but the rule does not require any particular imprimatur. United States v.
Barker, 553 F.2d 1013, 1024 (6th Cir. 1977).
There was a sufficient basis here for the district court to conclude that Rhodes
was an expert on the matters about which he testified. That Rhodes was a certified
and experienced interpreter and fluent in Spanish and English was certainly probative
of his expertise. The work about which he testified included converting Spanish oral
recordings into English, and then preparing a written record of the dialogue in
English. As the district court observed, the exercise was a hybrid between pure oral
interpretation and pure written translation. Whether or not Rhodes was formally
certified by a professional organization as a written translator, he had enough
knowledge of the language, skill in interpretation, and experience with both
interpretation and translation to justify the district court’s receipt of his testimony as
that of an expert under Rule 702.
Perez Sanchez also argues that the district court erred in permitting the jury to
read the transcripts that Rhodes prepared. At trial, the court admitted the Spanishlanguage audio recordings into evidence, and distributed the transcripts to the jury as
an aid, but did not admit the transcripts into evidence or send them to the jury room.
Perez Sanchez does not challenge this procedure, although it appears to be
unorthodox. In a case with English-language recordings, the audio recordings
typically are the only evidence of the conversation; any transcripts are furnished to the
jury merely as an aid in following the audio. United States v. McMillan, 508 F.2d
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101, 105-06 (8th Cir. 1974). But where the evidence is a foreign-language recording,
the jury usually cannot understand the audio recording. Transcripts must be prepared
and introduced as evidence so that the jury has a basis for considering the substance
of the recording. United States v. Chavez-Alvarez, 594 F.3d 1062, 1068 (8th Cir.
2010). In this case, the court did not receive the transcripts as evidence, and the jury
presumably could not understand the audio recording. But the transcripts, according
to the district court, were “given to the jury to help the jury to whatever extent they
can.” Perez Sanchez did not object to the jury’s use of the transcripts under this
direction.
Perez Sanchez’s claim on appeal is that the transcripts were unreliable. Rhodes
admitted that after he first prepared the transcripts, he was required on further review
to make about ten corrections per page in a seventeen-page document. That Rhodes
made so many corrections, however, did not preclude the court from allowing the jury
to consider them. “[I]t is the function of the finder-of-fact to weigh the evidence
presented by the parties as to the accuracy of the proffered translation and to
determine the reliability of the translation on the basis of that evidence.” United
States v. Perez, 663 F.3d 387, 394 (8th Cir. 2011) (internal quotation omitted). Perez
Sanchez, citing the numerous corrections to the transcripts, challenged Rhodes’s
capability and reliability. The government responded by eliciting testimony that none
of the many corrections were “substantive in nature as to the gist of the conversation.”
Perez Sanchez did not offer his own version of the transcript, although he could have
done so. See United States v. Baldenegro-Valdez, 703 F.3d 1117, 1127 (8th Cir.),
cert. denied, 133 S. Ct. 2403 (2013). It was for the jury to decide whether the
government met its burden to show that the transcripts that Rhodes prepared were
reliable enough to weigh against Perez Sanchez.
In addition to his evidentiary arguments, Perez Sanchez challenges the
sufficiency of the evidence to convict him of either conspiracy to distribute
methamphetamine or the substantive counts. We view the evidence in the light most
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favorable to the prosecution, accepting all reasonable inferences in favor of the
verdict, and affirm unless no reasonable juror could have convicted the defendant.
United States v. Katkhordeh, 477 F.3d 624, 626 (8th Cir. 2007).
Even without the disputed transcripts, the evidence against Perez Sanchez was
substantial. Crystal Easter testified that Perez Sanchez and Rodriguez Gutierrez
supplied her with methamphetamine. She explained that on two different occasions
while cooperating with law enforcement, she called Rodriguez Gutierrez to request
methamphetamine, and Perez Sanchez delivered the drugs. Another witness, Pablo
Fernandez Rodriguez, testified that he made multiple controlled purchases of
methamphetamine from Perez Sanchez; on another occasion, Fernandez Rodriguez
purchased methamphetamine from Perez Sanchez’s wife, whom Perez Sanchez sent
to make the delivery. For each controlled purchase that formed the basis of a
substantive count of conviction, an officer testified about how the transaction was
arranged through cooperating informants, explaining that law enforcement provided
the funds to make the purchase, searched the informant before and after the encounter,
observed and photographed the transaction, and collected the drugs afterward. There
was sufficient evidence to permit a reasonable jury to convict Perez Sanchez on all
counts.
II.
Rodriguez Gutierrez appeals only his sentence. He argues that the district court,
in calculating the advisory guideline range, erred by increasing his offense level under
USSG § 3B1.1 for an aggravating role in the offense. We review the district court’s
determination of a defendant’s role in the offense for clear error. United States v.
Cole, 657 F.3d 685, 687 (8th Cir. 2011) (per curiam).
According to facts in the presentence report to which Rodriguez Gutierrez did
not object, Rodriguez Gutierrez obtained methamphetamine from a supplier and
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directed Perez Sanchez to sell the drugs. Rodriguez Gutierrez also obtained liquid
methamphetamine from another supplier and converted it into solid form in his
basement. During one transaction in which Perez Sanchez sold methamphetamine to
a confidential informant, the informant questioned the quality of the drug. In
response, Perez Sanchez called Rodriguez Gutierrez, who confirmed that the drugs
were “good.” In another controlled transaction, the buyer called Rodriguez Gutierrez
to request drugs, and he sent Perez Sanchez to make the sale. After Perez Sanchez’s
arrest, he told law enforcement officers that he obtained methamphetamine from
Rodriguez Gutierrez and that Rodriguez Gutierrez directed him to bring the proceeds
of the sale back to him after the transaction.
Based on this evidence, the district court found that Rodriguez Gutierrez was
“an organizer, leader, manager, or supervisor” of at least one other participant in the
criminal activity, and increased his offense level by two levels under USSG
§ 3B1.1(c). The determination was not clearly erroneous. Rodriguez Gutierrez
oversaw distribution by Perez Sanchez, supplying the drugs, directing Perez Sanchez
to the customers, and controlling the proceeds of the transactions. This evidence was
sufficient to support a finding of an aggravating role. See, e.g., United States v.
Frausto, 636 F.3d 992, 996 (8th Cir. 2011). There was no procedural error.
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The judgments of the district court are affirmed.
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