UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis Rodriguez GUTIERREZ, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Manuel Perez Sanchez, Defendant-Appellant.
Nos. 12-4019, 13-1327
United States Court of Appeals, Eighth Circuit
July 8, 2014
756 F.3d 785
A: I understand the process now, yeah. I did not know that.
A computer forensic examiner testified at the sentencing hearing that the folders on Lynch‘s desktop associated with the file sharing programs were default folders, meaning that the peer-to-peer programs created these folders without Lynch‘s conscious action. The interviewing officer even testified that he told Lynch on three occasions during the interview that he believed Lynch. The truthfulness of Lynch‘s interview responses is heightened because the interview was voluntary and occurred at the first instance in which Lynch knew of the investigation. Furthermore, Lynch had already admitted to possessing child pornography earlier in the interview.
This evidence, especially the interview transcript, reveal a confused defendant who had no idea that he distributed, or made available, child pornography to other users. Nonetheless, the per curiam properly upheld the district court‘s decision because the district court explicitly stated that it would sentence Lynch to 210 months’ imprisonment regardless of any error in Lynch‘s offense-level calculation. The district court explained that it would vary upward to 210 months’ imprisonment, at least in part, because
[Lynch] has admitted hands-on offending against at least one child on more than one occasion. When he worked at a juvenile facility, he met a 16-year-old with whom he later had sex. He stated that that did not occur until the boy was 18 and had been discharged from the juvenile facility.
As I indicated, he admitted that in 2002 he had oral sex with a child, age 15, 16, both at a park and at his home. This is uncharged criminal conduct and very, very concerning considering the type of work that he did prior to his arrest.
We have stated in the context of a Guidelines-calculation appeal that
even if [the defendant] were successful on any issues he raises on appeal, the district court made sufficient findings that his final sentence would be unchanged regardless of his guideline calculations. The district court stated that “[i]n the event that the guidelines would fall below 480 months, the Court would depart upward or vary upward to 480 months.” Since the district court explicitly stated that it would have imposed a 480 month sentence regardless of the guidelines, any error in applying the guidelines would be harmless. See United States v. Davis, 583 F.3d 1081, 1094 (8th Cir.2009).
United States v. Pappas, 715 F.3d 225, 230 (8th Cir.2013). In other words, “misapplication of the guidelines would be harmless if the district court would have imposed the same sentence had it not relied upon the invalid factor or factors.” United States v. Henson, 550 F.3d 739, 740 (8th Cir.2008) (quoting Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992)). Because the miscalculation here was harmless, I agree that we should affirm the district court‘s decision.
Filed: July 8, 2014.
Corrected: July 8, 2014.
Patricia Mullen Hulting, Michael J. Piper, Des Moines, IA, for Defendant-Appellant.
Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
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 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 col
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., — U.S. —, 132 S.Ct. 1997, 182 L.Ed.2d 903 (2012), which construed the phrase “compensation of interpreters” in a federal statute concerning the award of costs to prevailing parties,
Under
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 Spanish-language 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 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
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, — U.S. —, 133 S.Ct. 2403, 185 L.Ed.2d 1113 (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 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
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
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The judgments of the district court are affirmed.
COLLOTON
CIRCUIT JUDGE