United States v. Sandoval, Hector ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1004
UNITED STATES OF AMERICA,
Plaintiff -Appellee,
v.
HECTOR SANDOVAL,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 99 CR 40019—Joe Billy McDade, Chief Judge.
____________
ARGUED SEPTEMBER 5, 2003—DECIDED OCTOBER 20, 2003
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Before BAUER, POSNER, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. On February 18, 1999, a grand
jury returned a two-count indictment charging Hector
Sandoval with kidnapping, 18 U.S.C. § 1201(a)(1), and
carrying a firearm during and in relation to a violent crime,
18 U.S.C. § 924(c)(1)(A). After a trial on August 28, 2002, a
jury convicted Sandoval on both counts and his September
5th motion for a new trial was denied. On December 13,
2002, the district court sentenced the defendant to a 121-
month term of imprisonment on the kidnapping count and
a 120-month consecutive term of imprisonment on the
firearm count.
2 No. 03-1004
Sandoval raises four issues on appeal: 1) whether the
prosecutor’s remarks during opening statement, closing
argument, and the sentencing hearing constituted prosecu-
torial misconduct; 2) whether the district court plainly
erred in its use of an interpreter based on The Court
Interpreter’s Act, 28 U.S.C. § 1827(D)(1); 3) whether the
indictment was sufficient as a matter of law; and 4)
whether the venue in the Central District of Illinois was
proper. For the reasons set forth below, we affirm the
judgment of the district court.
BACKGROUND
Marcelo Sandoval, the appellant’s uncle (hereinafter
Marcelo) was an illegal drug supplier. Marcelo had a
disagreement with two of his customers, Frank Rivas and
Ramon Ceja. Rivas and Ceja were unable to pay Marcelo
and were allowed to work off their debt by arranging for a
courier to pick up one of Marcelo’s drug shipments from
Texas and transport it to Chicago. Instead Rivas and Ceja
attempted to keep the shipment for themselves. Marcelo
and his men kidnapped Rivas and threatened to hold him
prisoner until the drug shipment was returned. Rivas,
however, was able to communicate with his wife, tell her his
whereabouts, and she notified the police. The police ulti-
mately rescued Rivas from Marcelo’s house where he was
being held by Marcelo and Hector Sandoval. Both men were
indicted for kidnapping and carrying a firearm during and
in relation to a violent crime. Marcelo was also charged
with one count of conspiracy to distribute and possession
with intent to distribute marijuana, cocaine, and metham-
phetamine. Both were found guilty of the charges against
them.
One of the issues on appeal regards the use of an uncerti-
fied court interpreter. Throughout the trial, an interpreter,
Mr. Farquharson, sat at the defense table and interpreted
No. 03-1004 3
the proceedings for the defendant. The defense called two
witnesses, his girlfriend, Delia Avila, and the defendant
himself. Both witnesses spoke Spanish and when Avila
testified, an additional interpreter, Mr. Guadalajara, was
used to translate her testimony while Mr. Farquharson
continued to translate for the defendant.
Avila attempted to provide an alibi for the defendant,
testifying that they had taken a walk together in a park in
the late afternoon, the day before his arrest. In addition,
she claimed she saw him on the day of his arrest but was
not sure of the time or place. She testified that when the
defendant was not with her, he was at home. The word
“home” was focused on during the cross examination. First,
she testified that Hector lived with Marcelo, and then
changed her story and claimed he was only visiting at
Marcelo’s house.
At that point, the interpreter interjected and stated that
he did not believe the witness was understanding the
difference between “live” and “visit”. The prosecutor
objected and a sidebar discussion ensued. The court deter-
mined that even though Mr. Guadalajara was not certified,
he was an approved translator on the court’s list. The
defendant never objected to the use of Mr. Guadalajara.1
The court then determined that there was no basis to find
that Mr. Guadalajara was translating improperly. He asked
that the attorneys make an extra effort to ask simple
1
Before Avila’s testimony, the prosecutor expressed his concerns
regarding the use of interpreters. He described past situations
where the interpreter interjects his own opinions about the
witness’ testimony or engages in his own dialogue with the
witness. The court, at that point, made sure that Mr. Guadalajara
understood that he should avoid any inadvertent dialogue with
the witnesses and Mr. Guadalajara assured that he understood.
(Tr. 365-67)
4 No. 03-1004
questions and also admonished Mr. Guadalajara to refrain
from interjecting and only to act as a mouthpiece for the
witness.
A number of the prosecutor’s remarks during opening
statement, closing argument, and sentencing are also at
issue. We will include a few examples below to aid in our
analysis.
ANALYSIS
I. Prosecutor’s Comments During Opening Statement,
Closing Argument, and Sentencing
The first issue we consider is whether comments made by
the prosecutor during the opening statement, the closing
argument and the sentencing constitute prosecutorial
misconduct. To determine whether a prosecutor’s comments
constitute misconduct, this court uses a two-step inquiry.
First, it must be determined whether the comments them-
selves were improper. United States v. Anderson, 303 F.3d
847, 854 (7th Cir. 2002). If improper, we consider whether
the statements taken in the context of the entire record,
deprived the defendant of a fair trial. Id. In doing so, we
consider:
1) the nature and seriousness of the misconduct; 2) the
extent to which the comments were invited by the
defense; 3) the extent to which the prejudice was
ameliorated by the court’s instruction to the jury; 4) the
defense’s opportunity to counter any prejudice; and 5)
the weight of the evidence supporting the conviction.
Id; (quoting United States v. Amerson, 185 F.3d 676, 686
(7th Cir. 1999).
Where the defendant fails to object to the remarks at the
time they were made, the plain error standard additionally
requires that the defendant “establish not only that the
No. 03-1004 5
remarks denied him a fair trial, but also that the outcome
of the proceedings would have been different absent the
remarks.” Id; (quoting United States v. Durham, 211 F.3d
437, 442 (7th Cir. 2000). When the defendant objects to the
remark at the time it was made, we review the trial court’s
ruling for an abuse of discretion. United States v. Graham,
315 F.3d 777, 782 (7th Cir. 2003).
All but one of the claims of misconduct brought by the
defendant will be reviewed for plain error because the
defense did not object to them at trial. Id. Much of the
comments the appellant challenges contradict his view of
the evidence, but are nonetheless proper. For instance, he
argues that the prosecutor’s statements that the defendant
ran toward the back of the house and stashed his gun when
the Chicago police arrived on the scene were unsupported
by the evidence. However, the record reveals that two
officers as well as Rivas, testified that the two people that
ran away were the defendant and Marcelo. The prosecutor’s
statements during opening, closing, and at sentencing were
supported by the evidence or were reasonable inferences
from the evidence, and therefore were proper.
Even assuming any of the comments were improper, the
jury instructions would have ameliorated any prejudice.
Furthermore, the defense had ample opportunity to counter
any prejudice. The judge gave the standard jury instruction,
reminding the jury members not to consider the attorneys’
arguments as evidence and to trust their own memory and
view of the evidence. (Tr. 523). In addition, there is no
reason to believe that the weight of the evidence does not
support the defendant’s conviction. The government’s
comments neither denied the defendant a fair trial nor
changed the outcome.
One of the defendant’s claims of misconduct was objected
to at trial and is therefore reviewed for an abuse of discre-
tion. Graham, 315 F.3d at 782. In this instance the prosecu-
6 No. 03-1004
tor stated that the Chicago police officers’ version of the
facts was irreconcilable with that of the defendant’s. The
prosecutor argued:
What does the defendant do? He takes off. You know, he
says, oh no, we were on our way out the door, going to
buy cigarettes. Well, you would have to conclude that
the police officers were not telling the truth if you’re
going to accept the defendant’s testimony.
(Tr. 491-92). The defense objected to this comment based on
United States v. Vargus, which prohibits a prosecutor from
arguing to the jury that it must acquit if it disbelieves the
officers. 583 F.2d 380 (7th Cir. 1978)(emphasis added). That
is not the type of argument made here. The prosecutor
made a permissible argument, suggesting to the jury that
it cannot believe the testimony of the officers and that of
the defendant at the same time. United States v. Amerson,
185 F.3d 676 (7th Cir. 1999). The prosecutor is entitled to
ask the jury to weigh the credibility of the witnesses. Id.Therefore, the district court judge did not abuse his discre-
tion by overruling this objection.
II. Use of the Interpreter
Next we consider the appellant’s argument that the
district court erred when it used an uncertified and incom-
petent interpreter at his trial to translate a witness’s
testimony. However, the Court Interpreter’s Act, 28 U.S.C.
§ 1827, does not require a certified interpreter at trial, nor
did the defendant raise an objection at trial. Furthermore,
there is no evidence to suggest that the interpreter used
was incompetent.
The district court is afforded wide discretion in imple-
menting the Court Interpreter’s Act because it is in the best
position to evaluate the need for and the performance of
interpreters. United States v. Johnson, 248 F.3d 655, 661
No. 03-1004 7
(7th Cir. 2001). Therefore, its decisions on the appointment
and use of interpreters are generally reviewed by this court
for an abuse of discretion. Id. However, when a defendant
fails to object to the interpreter at trial, the alleged error is
reviewed on appeal under the plain error standard. United
States v. Osuna, 189 F.3d 1289, 1292 (10th Cir. 1999);
United States v. Paz, 981 F.2d 199, 201 (5th Cir. 1992). The
law does not support the defendant’s challenge to the use of
an uncertified interpreter. The Court Interpreter’s Act
provides in pertinent part:
The presiding judicial officer . . . 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 pro-
ceedings instituted by the United States. . . .
28 U.S.C. § 1827(d)(1). Because the defendant failed to raise
this objection at the trial level, the district court was not
afforded the opportunity to make a record as to whether
another certified interpreter was available.
Nevertheless, Mr. Guadalajara, the witness’s interpreter,
was “otherwise qualified” and was on the court’s list as an
approved interpreter. (Tr. 385). The transcript reveals that
the district court judge specifically found Mr. Guadalajara
to be competent. (Tr. 387-88, 391).2 Under the record, the
defendant cannot demonstrate that he would not have been
convicted but for the use of the uncertified interpreter.
There was no error, plain or otherwise, in the use of the
uncertified interpreter.
2
The district court judge had occasion to comment on the
interpreter’s competence after the prosecution objected to the
interpreter’s interjection into the witness’ testimony. (Tr. 382).
8 No. 03-1004
III. The Sufficiency of the Indictment
The third issue we consider is the sufficiency of the
defendant’s indictment for kidnapping and for using and
carrying a firearm during and in relation to a crime of
violence. This court reviews challenges to the sufficiency of
an indictment de novo. United States v. Anderson, 280 F.3d
1121, 1124 (7th Cir. 2002). However, if an indictment has
not been challenged at the trial level, it is immune from
attack unless it is so obviously defective as not to charge the
offense by any reasonable construction. Id. (quoting United
States v. Frank Smith, 223 F.3d 554, 571 (7th Cir. 2000)).
In addition, unless there have been extraordinary circum-
stances, belated challenges to an indictment are construed
liberally in favor of validity. Id.To be sufficient, an indictment must: 1) state all the
elements of the crime charged, generally by tracking the
statutory language of the offense; 2) adequately apprise the
defendant of the nature of the charges so that he may
prepare a defense; and 3) allow the defendant to plead the
judgment as to a bar to any future prosecutions. See FED. R.
CRIM. P. 7(c)(1); United States v. Craig Smith, 230 F.3d 300,
305 (7th Cir. 2000). An indictment is reviewed entirely on
a practical basis, rather than in a “hypertechnical manner.”
Id. Although the indictment must provide some means of
pinning down the specific conduct at issue in order to
apprise the defendant of the charges, the presence or
absence of any particular fact need not be dispositive. Id.In the instant case, the defendant does not claim any
particular deficiency other than he: “challenges the suffi-
ciency of the indictment as a matter of law in conferring
subject matter jurisdiction over the charged offenses.” (Def.
Br. 34). Pursuant to 18 U.S.C. § 3231, district courts have
exclusive subject matter jurisdiction over all offenses
against the law of the United States, including kidnapping
under 18 U.S.C. § 1201(a)(1) and using or carrying a
No. 03-1004 9
firearm during and in relation to a crime of violence under
18 U.S.C. § 924(c)(1). At no time, until this appeal, has the
defendant challenged the sufficiency of the indictment. The
elements of the offense of kidnapping under 18 U.S.C.
§ 1201(a)(1) are: (1) that the defendant knowingly and
willfully seized, confined, kidnapped, abducted or carried
away a person as charged; (2) that the defendant held such
a person from the kidnapping; and (3) that such person was
thereafter transported in interstate commerce while so
confined, or kidnapped. DeSilva v. Dileonardi, 125 F.3d
1110, 1114 (7th Cir. 1997). Count one of the indictment
alleged all of the elements of the offense by tracking the
statutory language:
Beginning on or about November 30, 1997, and continu-
ing thereafter until on or about December 1, 1997, in
the Cental District of Illinois and elsewhere, the
defendants Marcelo Sandoval and Hector Sandoval, did
knowingly and unlawfully seize, confine, kidnap,
abduct, carry away, and hold for ransom, reward, and
otherwise, Frank Rivas, and did willfully transport said
Frank Rivas in interstate commerce between the State
of Iowa and the State of Illinois, in violation of Title 18,
United States Code, Section 1201(a)(1), and Title 18
United States Code, Section 2.
To prove a violation of 18 U.S.C. § 924(c)(1)(A), the govern-
ment must show that the defendant: 1) used a firearm; (2)
committed all the acts necessary to be subject to punish-
ment for a crime of violence (here, kidnapping); and 3) used
the gun during and in relation to the kidnapping. United
States v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999). As in
Count one, Count two contains all the elements by tracking
the language of the statute:
Beginning on or about November 30, 1997, and continu-
ing thereafter until on or about December 1, 1997,
within the Central District of Illinois and elsewhere,
10 No. 03-1004
the defendants, Marcelo Sandoval and Hector Sandoval,
did knowingly use and carry firearms, that is: (1) a Colt
.38 caliber super semiautomatic handgun; and (2) a AA
Arms 9mm handgun; during and in relation to a crime
of violence which is a felony prosecutable in a court of
the United States, that is, as set forth in Count 1 of this
Indictment. All in violation of Title 18 United States
Code, Sections 924(c) and 2.
Both counts of the defendant’s indictment contain suffi-
cient facts to apprise the defendant of the charges against
him, and were also sufficiently specific that he could have
pleaded a judgment as a bar to future prosecutions. This
indictment was free of any defects, such that even the
defendant could claim no specific defect or omission in the
indictment in this appeal.
IV. Proper Venue
Finally, we consider the defendant’s challenge of venue.
He argues that the Central District of Illinois was an
improper venue. However, because part of the charged
crime of kidnapping took place in the Central District of
Illinois, venue is proper. United States v. Tingle, 183 F.3d
719, 726 (7th Cir. 1999). In addition, the venue for the
firearm charge is proper wherever venue for the underlying
crime of violence was proper. Rodriguez-Moreno, 526 U.S.
at 281-82.
When reviewing a claim of improper venue, we view the
evidence in the light most favorable to the government in
determining whether the government showed by a prepon-
derance of the evidence that the crime occurred in the
district charged. Tingle, 183 F.3d at 726.
The defendant argues that there is no evidence that he
participated in the kidnapping until Rivas reached Chicago,
the Northern District of Illinois, therefore, venue in the
No. 03-1004 11
Central District is improper. In addition, the defendant
argues that because venue is improper for the kidnapping
charge, the firearm charge has no basis for venue either.
Neither argument has merit.
The first argument is without merit because kidnapping
is a unitary crime which does not end until the victim is
free. United States v. Rodriguez-Moreno, 526 U.S. 275, 281-
82 (1999). “It does not make sense, then, to speak of it in
discrete geographic fragments.” Id. Besides, Congress has
specifically provided that a continuing offense, like kidnap-
ping, may be prosecuted “in any district in which such
offense was begun, continued, or completed.” 18 U.S.C.
§ 3237(a). The evidence in this case established that Rivas
was driven from Davenport, Iowa, across the Mississippi
River on a bridge in the Quad Cities, and into the Central
District of Illinois, before being taken to Chicago. (Tr. 160-
63). Therefore, venue in the Central District is proper.
As for the second argument, the Court held in Rodriguez-
Moreno that with respect to the § 924(c) firearm count
predicated upon the kidnapping as the crime of violence,
“where venue is appropriate for the underlying crime of
violence, so too it is for the § 924(c)(1) offense.” Id. at 282.
Because venue is proper for the kidnapping charge, it is
also proper for the firearm offense.
Accordingly, we AFFIRM the decision of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-20-03