Mendoza v. USA
Filing
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OPINION AND ORDER DENYING Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Robert L Miller, Jr on 8/27/2013. (lyb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
GABRIEL MENDOZA,
Petitioner
vs.
UNITED STATES OF AMERICA
Respondent
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CAUSE NO. 3:12-CV-72 RLM
(Arising out of 3:05-CR-147 RLM)
CAUSE NO. 3:12-CV-73 RLM
(Arising out of 3:09-CR-16 RLM)
OPINION and ORDER
To face trial for one’s life in a language other than one’s own is a terrifying
thing. The courts of the United States provide interpreters to criminal defendants
whose native language is not English during all critical stages of the proceeding.
Gabriel Mendoza has filed a petition under 28 U.S.C. § 2255 claiming
constitutional shortcomings in connection with translation issues in his
prosecution. He complains that his attorney didn’t provide him with Spanish
translations of discovery material as he requested, and that improper procedures
were used when the court interpreter was used to translate questions to, and
answers given by, his common law wife at trial. For the reasons that follow, the
court denies Mr. Mendoza’s petitions.
I. UNCONTESTED FACTS
First, the uncontested facts pertinent to this petition.
Mr. Mendoza was indicted on Cause No. 3:05-CR-147 in December 2005.
He wasn’t arrested until October 2008. He was indicted in Cause No. 3:09-CR-16
in February 2009. The charges involved possession, distribution, and conspiracy
to distribute cocaine and methamphetamine in various amounts and at various
times. Attorney Mark Lenyo was appointed to represent Mr. Mendoza in both
cases; Mr. Mendoza pleaded not guilty in both matters. In March 2009, the
government’s motion to consolidate both cases for trial was granted. Following
trial, the jury found Mr. Mendoza guilty. The court sentenced him to what
amounted to a life sentence. The court of appeals affirmed the conviction in
November 2010. United States v. Mendoza, 401 F. App’x 128, 2010 WL 4851063
(7th Cir. 2010).
Mr. Mendoza complained from nearly the very beginning of the case about
not getting Spanish translations of the evidence the government had. In February
2009, he wrote to Judge Sharp, who had been the original judge in the case,
asking Judge Sharp to make Mr. Lenyo provide Spanish translations, as well as
asking for an interpreter when he was in court. The court took no action on the
letter because Mr. Mendoza was represented by counsel.
After a few continuances, the trial was set to begin on October 5, 2009. Mr.
Mendoza asked for another lawyer. The court asked Mr. Mendoza why he wanted
another lawyer, but Mr. Mendoza’s responses kept swerving into the facts of the
case. Rather than let Mr. Mendoza provide the prosecution with any more
evidence, the court told Mr. Mendoza he should talk to Mr. Lenyo over the lunch
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break about what he could say about his request without giving incriminating or
inconsistent statements. Court broke for lunch. According to the record, the
presiding judge became ill in the afternoon, so the trial didn’t resume until the
next morning.
The next morning, October 6, the court asked Mr. Lenyo if Mr. Mendoza still
wanted to speak. Mr. Lenyo’s response of record is quoted because it becomes
important in the final ruling:
Your Honor, I believe Mr. Mendoza does want to address the
Court. After court concluded yesterday for the morning session, we
did have a discussion. Mr. Mendoza voiced his complaints. I tried to
give him explanations as to why I think a lot of his concerns deal with
strategy decisions on why certain witnesses are not being called by
the Defense. In fact, at this point, it looks like we don’t plan on
having any witnesses. There are extensive witness lists, forty
witnesses from the Government, which, essentially, encompasses
those witnesses who I had hoped to elicit information from in defense
of Mr. Mendoza. I believe Mr. Mendoza may have some comments as
well.
The court then asked Mr. Mendoza if he wanted to add anything. He wanted
to speak and said, through the interpreter, that Mr. Lenyo hadn’t prepared him
enough for trial because he, Mr. Mendoza, was waiting to have the government’s
documents translated into Spanish. He said that based on papers he had a niece
translate for him, there were discrepancies in the evidence and things were
discussed that happened when he wasn’t in the country.
The court gave Mr. Lenyo a chance to respond. Mr. Lenyo said, among other
things, that discovery had come in a constant stream, and that reviewing each
and every document with Mr. Mendoza was impractical and impossible in light of
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the number of documents. A few minutes later, Mr. Grimmer referred to more
than 3,500 pages of discovery. Mr. Lenyo outlined the number of times he had
discussed the case with Mr. Mendoza, and said that much of what Mr. Mendoza
wanted to see in Spanish was going to be presented by oral testimony at trial. Mr.
Grimmer reported that while there was considerable electronic evidence in the
discovery, most of it was inaudible, and the government was only going to use
about three brief tapes at trial. Most of the evidence, he said, would come from
informants’ testimony.
After hearing from both sides, the court denied the motion for a new
attorney, trying to apply the considerations the court of appeals says district
courts should apply to day-of-trial motions for new counsel. See United States v.
Simmons, 582 F.3d 730 (7th Cir. 2009); United States v. Van Waeyenberghe, 481
F.3d 951 (7th Cir. 2007).
Trial proceeded. Two sworn interpreters were in court that day — Susannah
Bueno and Ana Maria Toro-Greiner. Court interpreters ordinarily work in pairs in
day-long jury trials so one can rest while the other translates.
The government’s second witness of the day was Aurora Virruta, Mr.
Mendoza’s common law wife and a native Spanish-speaker. The Assistant United
States Attorney handling that witness, Frank Schaffer, told the court that Ms.
Virruta doesn’t speak English. After a bench conference, the court asked Ms.
Toro-Greiner to move up to the witness stand so that she could translate the
questions to Ms. Virruta and translate her answers to the courtroom. Mr. Lenyo
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didn’t object to that procedure. Ms. Toro-Greiner did as the court asked during the
direct examination, and Ms. Bueno took over that role during the cross and the
very brief redirect. At the close of Ms. Virruta’s testimony, the trial broke for
lunch.
After the jury left for lunch and while the rest of the trial participants were
in the courtroom, the court asked both sides if they had anything to raise before
the break, and both said no. The court asked the same question when trial
resumed in the afternoon, and got the same answer.
Those are the uncontested facts. Facts that turn on credibility that will be
covered as this opinion unfolds.
II. DUE PROCESS
Mr. Mendoza contends that the absence of an interpreter at counsel table,
physically or electronically, during Aurora Virruta’s testimony effectively deprived
him of his due process right to be present during trial because he couldn’t discuss
matters with his attorney as the testimony was taking place and because he
couldn’t hear the interpreter translate the questions put to Ms. Virruta from
English to Spanish.
The government says Mr. Mendoza procedurally defaulted this due process
claim by not raising it in his direct appeal. When an issue isn’t raised on direct
appeal, a petitioner will be barred from collateral review under 42 U.S.C. § 2255
unless he can show good cause for not raising the issue and actual prejudice,
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Massaro v. United States, 538 U.S. 500, 504 (2003), or that "a refusal to consider
the issue would be a fundamental miscarriage of justice." Galbraith v. United
States, 313 F.3d 1011, 1006 (7th Cir. 2002). This issue isn’t one he could have
raised on direct appeal because the interpreters’ availability isn’t shown on the
record. His complaints of actual prejudice are set forth in the discussion of this
claim. He has shown cause and alleged prejudice, so the court proceeds.
Due process is denied when a criminal defendant can’t understand what is
being said to him, or when a translation’s accuracy and scope is subject to grave
doubt, or when the nature of the proceeding isn’t explained in a way that ensures
the defendant’s full understanding, or when the defendant was unable to
understand due to language difficulty. United States v. Johnson, 248 F.3d 655,
663 (7th Cir. 2001); United States v. Cirrincione, 780 F.2d 620, 634 (7th Cir.
1985).
The Court Interpreters Act, 28 U.S.C. §§ 1827, 1828, was enacted to
“mandate the appointment of interpreters under certain conditions,” “establish
statutory guidance for the use of translators in order to ensure that the quality of
the translation does not fall below a constitutionally permissible threshold,” and
“ensure that the defendant can comprehend the proceedings and communicate
effectively with counsel through the appointment of a certified interpreter.” United
States v. Johnson, 248 F.3d 655, 661 (7th Cir. 2001) (internal quotations and
citations omitted). The Act provides in pertinent part that
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The presiding judicial officer . . . shall utilize the services of the most
available certified 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 . . . so as to
inhibit such party’s comprehension of the proceedings or
communication with counsel or the judicial officer, or so as to inhibit
such witness’ comprehension of questions and the presentation of
such testimony.
28 U.S.C. § 1827(d)(1).
A.
The evidence presented at the hearing on this petition doesn’t support Mr.
Mendoza’s factual claim that no interpreter was available for communication
between client and counsel during Aurora Virruta’s testimony. Two interpreters
were in the courtroom — Ms. Bueno and Ms. Toro-Greiner — on the second day
of trial. Mr. Lenyo testified forcefully and persuasively that one interpreter stood
near the witness stand to translate the questions to Ms. Virruta and the answers
she gave, and the other interpreter was at counsel table with Mr. Mendoza. Mr.
Lenyo didn’t say that the second interpreter was translating testimony to Mr.
Mendoza (which would have been superfluous in light of the other interpreter’s
work), but she was available to Mr. Mendoza for clarification or communication
with Mr. Lenyo.
The testimony of court interpreters Bueno and Toro-Greiner modestly
corroborates Mr. Lenyo’s testimony. Ms. Bueno testified that while she didn’t
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remember where she sat while Ms. Toro-Greiner translated the Virruta direct
examination for the courtroom, she was in the courtroom. Ms. Bueno didn’t
remember where Ms. Toro-Greiner was during the Virruta cross-examination, but
said it would be very unusual for either interpreter to be out of the courtroom
during testimony. Ordinarily, Ms. Bueno testified, the other interpreter would sit
near the defendant without interpreting to him, in case he had any questions. Ms.
Toro-Greiner testified that she had no independent recollection of Ms. Bueno’s
location during the Virruta direct examination, but agreed it would be unusual for
either interpreter to be outside the courtroom during testimony. There is nothing
inconsistent between their testimony and what Mr. Lenyo recalled, and Ms.
Bueno’s testimony about what usually is done is wholly consistent with Mr.
Lenyo’s recollection.
Mr. Mendoza, in contrast, testified to entirely different facts. He said there
was no interpreter nearby for him to use during Ms. Virruta’s testimony. He said
he signaled the interpreter (his testimony left it unclear which interpreter he
signaled) when he wanted to talk to Mr. Lenyo (apparently while Mr. Lenyo was
cross-examining Ms. Virruta), but the interpreter ignored him.
Mr. Lenyo testified very credibly. He used his records to look up what he
couldn’t remember, conceded and explained his lack of objection to the interpreter
arrangement and his refusal to provide Spanish translations of discovery
documents, and responded patiently to questions that the questioner knew he
couldn’t answer. He conceded the “anything’s possible” types of questions, but
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was certain and firm that an interpreter sat near Mr. Mendoza during the Ms.
Virruta testimony. Mr. Lenyo’s testimony was quite believable and persuasive.
The same can’t be said of Mr. Mendoza’s testimony. Mr. Mendoza lied
repeatedly during his testimony at this hearing. His own attorney seemed to
struggle to extract the truth from him. Mr. Mendoza testified that Mr. Lenyo
visited him in jail no more than three times before trial and discussed nothing
beyond continuances and two pictures of a truck. Mr. Lenyo’s records, introduced
in evidence by Mr. Mendoza’s attorney, refute that testimony. Mr. Mendoza
testified that Mr. Lenyo didn’t summarize the evidence for him or even talk to him
generally about the case. That is hogwash. Mr. Lenyo has tried criminal cases in
this court since 1986 and has served as a public defender in the state courts since
1997, now handling the defenses of major crimes prosecutions. The proposition
that an attorney with that experience would never discuss anything substantive
with his client falls well outside the realm of the believable — especially since Mr.
Lenyo arranged for Mr. Mendoza to be taken to the United States Attorney’s office
to see the evidence the government had.
While preparing for trial, Mr. Lenyo asked the government’s attorney to
allow Mr. Mendoza to view the evidence arrayed against him. Ms. Bueno
accompanied Mr. Mendoza and Mr. Lenyo as an interpreter, but since an agent
was present during this unusual “evidence view,” Mr. Lenyo told Mr. Mendoza not
to speak while in the United States Attorney’s Office. This trip to view the evidence
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was imperfect because Mr. Mendoza couldn’t read the documents, but goes well
beyond what an attorney usually does to prepare a client for trial.
Returning to the testimony at the hearing on this petition, Mr. Mendoza
testified that when he used the headset to hear the interpreters at trial, the
headset occasionally didn’t work. He said some times he had to face the wall
opposite the witness to get a clear signal. He said there was interference on the
line, keeping him from hearing the Spanish voices on the headset. Mr. Mendoza
says he told the interpreters about the problems he was having, but they ignored
him. That is poppycock. Those three interpreters who Mr. Mendoza says ignored
him all testified at the hearing. Their dedication to what they do was easy to see
and feel. The court doesn’t believe that any (much less all) of those interpreters
ignored Mr. Mendoza’s complaints about the equipment.
Most significantly, Mr. Mendoza testified in this hearing that on October 5
(the day of Ms. Virruta’s testimony), after the court told Mr. Lenyo and Mr.
Mendoza to confer over the lunch hour about what Mr. Mendoza could and
couldn’t safely say when explaining why he wanted a different lawyer, there was
no discussion, no interpreter — no further discussion with Mr. Lenyo that day.
That is balderdash. When court began the next morning, Mr. Lenyo said, “After
court concluded yesterday for the morning session, we did have a discussion. Mr.
Mendoza voiced his complaints. I tried to give him explanations as to why.” Mr.
Mendoza then addressed the court, never disagreeing with what Mr. Lenyo had
just said; Mr. Mendoza simply complained again that he didn’t have documents
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in Spanish and that the evidence against him wasn’t very impressive. Mr.
Mendoza wanted a new lawyer. If Mr. Lenyo had just lied to the court about
meeting with Mr. Mendoza the day before, Mr. Mendoza would have let the court
know then, not four years later.
Mr. Mendoza testified that he got translations of none of the written
discovery, but his letter to the court commented on internal inconsistencies in the
reports that he had looked over. He answered questions during the hearing on his
§ 2255 petition before they were translated from English to Spanish, while
testifying that he spoke no English whatsoever. Mr. Mendoza was painfully
unbelievable, perhaps the least credible witness the presiding judge has seen in
thirty years.
The court credits Mr. Lenyo’s testimony about what occurred during Ms.
Virruta’s testimony. For that matter, the court credits Mr. Lenyo’s testimony over
Mr. Mendoza’s testimony on any point on which they disagree.
B.
Even if the second interpreter hadn’t been at counsel table, there still would
have been no denial of due process.
The law and the constitution require that a defendant be able to understand
the testimony and be able to communicate with his attorney, but no case has held
that a defendant has the right to be able to do both simultaneously. In United
States v. Johnson, 248 F.3d 655 (7th Cir. 2001), the defendants argued that a
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shared interpreter arrangement violated their Fifth and Sixth Amendment rights,
claiming the court should have provided an additional court-appointed interpreter
to be by their side at the defense table. The court rejected that claim: “While we
do read the Constitution as ensuring a defendant’s right to communicate with his
or her counsel, we do not read the Constitution as mandating the appointment of
an additional interpreter to sit at the defense table. The solution adopted by the
district court to allow the defendants to use the court-appointed interpreter to
communicate with their counsel during breaks fulfilled the defendants’ right to
communicate with counsel.” 248 F.3d at 664.
Mr. Mendoza could understand the witness’s testimony, which was given
(a) in his own language and (b) by his common law wife of at least twenty years —
they came to the United States together in 1984. Mr. Mendoza could understand
the questions put to the witness because the questions were translated aloud from
English to Spanish in open court. Both interpreters testified that they translate
questions loud enough for a person at the defense table to hear, and Mr. Mendoza
didn’t say he couldn’t hear.
Even if Mr. Mendoza had had no elbow interpreter through whom he could
communicate with Mr. Lenyo during the testimony, the interpreters were available
for that purpose at all other times during the trial, including when court was not
in session. One such occasion was the lunch break immediately after Ms. Virruta
testified. Mr. Mendoza could have communicated with Mr. Lenyo immediately
before or during the lunch break. When court resumed after lunch, the court
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asked whether the defense had anything to raise before the jury was brought in,
and Mr. Lenyo responded that there was nothing to raise. At that point, the court
interpreter was only translating to and from Mr. Mendoza.
C.
Mr. Mendoza suffered no deprivation of his right to due process.
II.
Mr. Mendoza raises two claims of constitutionally ineffective of assistance
of counsel. First, he complains that Mr. Lenyo failed to propose an alternative
method of interpreting Ms. Virruta’s testimony to accommodate communication
between Mr. Mendoza and Mr. Lenyo during her testimony. Second, he complains
that Mr. Lenyo failed to comply with Mr. Mendoza’s request that all discovery be
translated into Spanish for him. To demonstrate ineffective assistance of counsel,
Mr. Mendoza must prove that Mr. Lenyo’s performance fell below an objective
standard of reasonableness, and that Mr. Mendoza suffered prejudice as a result
of that. Strickland v. Washington, 466 U.S. 668, 688-694 (1984). "A court
considering a claim of ineffective assistance must apply a ‘strong presumption’
that counsel’s conduct was within the ‘wide range’ of reasonable professional
assistance. The challenger’s burden is to show that ‘counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth
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Amendment.’” Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 787 (2011)
(quoting Strickland v. Washington, 466 U.S. at 687 & 689). “The important inquiry
is ‘whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.’” United States v. Recendiz, 557 F.3d 511,513 (7th Cir. 2009) (quoting
Strickland v. Washington, 466 U.S. at 686).
A.
There was no ineffective assistance with respect to the interpreter
arrangement. As discussed in connection with the Due Process claim, both of the
possible arrangements of the interpreters, whether what Mr. Lenyo remembers or
what Mr. Mendoza remembers, were perfectly acceptable arrangements under
both the Sixth Amendment and the Court Interpreters Act. Even if a better
arrangement might be hypothesized, counsel’s acceptance of the acceptable
doesn’t fall below any objective standard of reasonableness.
B.
There was no ineffective assistance of counsel with respect to the failure to
provide Spanish translations of all of the thousands of pages of discovery. Mr.
Lenyo testified about his practice of summarizing discovery to defendants in the
course of developing trial strategy, and no evidence or authority suggests that
summarizing discovery rather than translating each page falls below an objective
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standard of reasonableness. The court doesn’t believe Mr. Mendoza’s testimony
that Mr. Lenyo never summarized the discovery materials to the extent they were
pertinent to the prosecution or defense case. Mr. Mendoza cites no authority for
the proposition that a non-English-speaking defendant is entitled to word-for-word
translations of thousands of papers of discovery.
The visit to the United States Attorney’s Office is a red herring as to Mr.
Lenyo’s performance. Ms. Bueno was present as an interpreter to translate the
case agent’s explanation of the evidence to Mr. Mendoza. The agent was present
throughout the defense visit because the evidence included such things as a very
large quantity of cocaine. To allow Mr. Mendoza to ask questions and hear
answers in the agent’s presence might well have fallen below an objective standard
of reasonableness.
Even if Mr. Lenyo’s performance fell below an objective standard of
reasonableness — and it didn’t — Mr. Mendoza suffered no prejudice as a result.
There is no claim that Mr. Mendoza misunderstood any evidence that was
presented at trial; there is no showing that Mr. Mendoza could have contributed
anything different to the trial strategy or trial preparation had some item of
discovery been translated to him. The only question he wanted Mr. Lenyo to ask
of Ms. Virruta was whether the police had threatened to take her children away
from her. Mr. Mendoza offered no evidence to suggest Ms. Virruta would have said
she had been threatened, or even why he believed she had been threatened. Mr.
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Mendoza had run out on her and his children when he fled in 2005 and hadn’t
seen her for more than four years by the time of trial.
Mr. Lenyo’s decision not to provide Mr. Mendoza with Spanish translation
of all papers produced in discovery didn’t fall below any objective standard of
reasonableness.
III.
Mr. Mendoza hasn’t shown that his rights to due process or effective
assistance of counsel were denied. The court DENIES his motions to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
SO ORDERED.
ENTERED:
August 27, 2013
/s/ Robert L. Miller, Jr.
Judge, United States District Court
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