United States v. Johnson, Wilton

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-3902, 00-1516, 00-1524 & 00-1525

United States of America,

Plaintiff-Appellee,

v.

Wilton Johnson, Jose J. Salazar,

Javier C. Santa Cruz, and Jesus G. Guzman,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern

Division.

No. 98 CR 845--George W. Lindberg, Judge.

Argued/* February 26, 2001--Decided April

23, 2001

Before Bauer, Posner, and Kanne, Circuit

Judges.

Bauer, Circuit Judge. This opinion

addresses a multi-issue appeal from a

multi-defendant criminal drug trial. Our

examination of this case leads us to

affirm on all claims.

BACKGROUND

In early November 1998, Octavio Holguin

asked Wilton Johnson to transport drugs

for him from El Paso, Texas to the Days

Inn Hotel in Shorewood, Illinois. Johnson

and two others piled into a truck with a

trailer attached and headed out to pick

up over 500 kilograms of bricked cocaine

in boxes from Holguin. En route to

Illinois, the men were pulled over on a

traffic stop, whereupon Johnson consented

to a search of the truck. The men were

arrested and agreed to perform a

controlled delivery with DEA agents. So,

Johnson called Holguin to tell him that

they would arrive in Illinois a day late

due to car troubles. When the men finally

arrived at the Days Inn, Johnson paged

Holguin, who had driven up from El Paso

with Jose Jesus Salazar.

Shortly after Johnson had paged Holguin,

Salazar and Javier Carrillo Santa Cruz

emerged from one of the hotel rooms and

walked through the parking lot to the

truck. They milled around the truck, got

in, pulled it slightly forward, got out,

and peeked inside the trailer. During the

next hour, Salazar and Santa Cruz

repeated this dance two more times, but

on both occasions, they also went inside

the trailer for a spell, seemingly moving

the boxes near the door of the trailer to

ease their eventual removal. On Salazar

and Santa Cruz’ fourth jaunt from the

hotel room to the trailer, Guzman joined

them, whereupon he proceeded to drive a

van up to the rear of the trailer.

Salazar and Santa Cruz opened the trailer

doors, Guzman opened the van doors. All

three then began to move one of the boxes

out of the trailer and into the van. At

that point, DEA agents moved in to arrest

the men. Salazar consented to a search of

the Days Inn hotel room, in which a bank

deposit receipt was found. The receipt

revealed that Santa Cruz had deposited

approximately 34,000 pesos into Salazar’s

bank account in Mexico about two months

prior. Holguin was never apprehended.

Johnson, Guzman, Santa Cruz, and Salazar

were charged with conspiracy to possess

500 kilograms of cocaine with intent to

distribute it under 21 U.S.C. sec. 846

(Count 1). Guzman, Santa Cruz, and

Salazar were also charged with possession

of 500 kilograms of cocaine with intent

to distribute it under 21 U.S.C. sec.

841(a)(1) (Count 2). A jury found

Johnson, Guzman, and Salazar guilty as

charged, and Santa Cruz guilty only on

Count 2, and district court sentenced

them. Defendants appeal their convictions

and sentences.

DISCUSSION

I. Court-Appointed Interpreters

Salazar, Santa Cruz, and Guzman complain

that the district court abused its

discretion under the Court Interpreters

Act, 28 U.S.C. sec.sec. 1827, 1828

("CIA") and violated their Fifth and

Sixth Amendment rights by not providing

an additional court-appointed interpreter

to sit at the defense table, thereby

inhibiting their ability to

simultaneously communicate with counsel.

A. The Court Interpreters Act

The CIA relevantly provides:

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) . . .

(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 . . . .

28 U.S.C. sec. 1827(d)(1). A defendant

entitled to an interpreter under sec.

1827(d) may waive this right "only if ap

proved by the presiding judicial officer

and made expressly by such individual on

the record after opportunity to consult

with counsel and after the presiding

judicial officer has explained to such

individual . . . the nature and effect of

the waiver." 28 U.S.C. sec. 1827(f)(1).

If the presiding judicial officer finds

under sec. 1827(d) that the appointment

of an interpreter is not necessary, "an

individual requiring the services of an

interpreter may seek assistance of the

clerk of court or the Director of the

Administrative Office of the United

States Courts in obtaining the assistance

of a certified interpreter." 28 U.S.C.

sec. 1827(e)(2). Further, the "capacity

for simultaneous interpretation services"

shall be provided in multi-defendant

criminal cases. 28 U.S.C. sec. 1828(a).

Throughout the entire trial in this

case, a court-appointed interpreter

simultaneously translated the proceedings

from English to Spanish through a

microphone that fed into headsets worn by

the defendants. During the government’s

case in chief, near the end of the cross-

examination of the third of its eight

witnesses by the last of four defense

attorneys, one of the defense attorneys

(the third to cross-examine this witness)

asked the court for a sidebar, which went

as follows:

MR. CARLSON [Salazar’s attorney]: It

really isn’t a problem, but my client--

because we have an interpreter here, my

client sometimes has questions for me and

wants to ask me certain things.

When I came back to my chair [after I

cross-examined this witness], he

indicated that he wanted to speak to me

before I finished.

I can’t understand anything he’s saying,

and the interpreter was being used at the

time.

Instead of interrupting the direct

examination--or the cross-examination of

Mr. Saltzman [Santa Cruz’ attorney], I

wanted to wait until I had a chance.

I was just wondering--and I don’t care

whether the Government wants to go ahead

and do their--any redirect they have and,

then, take a short break so I can talk to

my client and find out if there is any

other questions he has of this witness.

And I think that might be advisable for

all of the defendants.

MR. SALTZMAN: It might be good if he did

it when I’m done.

THE COURT: We will take a brief recess

now, okay.

Trial Tr. at 178-79. Then, before the

government’s fourth witness took the

stand, the following colloquy took place

between the district court and the

defense attorneys:

MR. CARLSON: Judge, one quick matter. .

. . [My client] has some concerns about

his ability to be able to communicate

with me during the course of the trial,

especially during the course of the

testimony that’s going on, because he is

unable to convey his thoughts to me as

witnesses are testifying.

He is very concerned that he’s not going

to be able to put his input into--and

fully advising me as to matters during

the testimony.

We have--unfortunately--only one

interpreter here, and the interpreter is

interpreting for the Court as well as the

defendants.

And, additionally, there are three

defendants who require the services of an

interpreter. But my client is just having

some very severe problems and concerns

about the lack of ability to communicate

with me due to the language difficulty.

THE COURT: Okay. Do you have a

suggestion or, otherwise, I will tell you

what we will do.

MR. CARLSON: Judge, I would just like

there to be-- if your Honor has a better

way, that’s fine--some break in the

testimony both before cross-examination

begins, and then before cross-

examination--cross-examination ends, so

we can sit and try to get input from our

clients.

THE COURT: Okay.

MR. SALTZMAN: I would join in that

too, Judge.

THE COURT: Let’s do it this way then.

Your clients should take down their

notes, just as the jury does, take them

in Spanish, and then you can simply ask

for a few moments while the interpreter

reviews with you the notes.

I will be glad to give you that time.

There is no problem.

MR. CARLSON: That’s fine. Thank you,

Judge.

THE COURT: Okay.

Trial Tr. at 189-90.

Appellate counsel decries the "flawed

’solution’ devised by the district

court." However, it is clear from the

colloquy that the "flawed solution" was

not "devised" by the district court, but

rather was proposed by defense counsel.

Defense counsel asked the court for

breaks before cross-examination and near

the close of cross to use the interpreter

to confer with the defendants. Since

defense counsel did not actually request

that an additional court-appointed

interpreter be appointed to sit at the

defense table, it cannot be said that the

district court expressly denied the

defendants an additional interpreter to

aid them in simultaneously communicating

with their attorneys. What the district

court did do was agree to implement the

request of defense counsel.

What the defendants’ appellate counsel’s

argument really boils down to is that the

district court was obliged to sua sponte

appoint an additional interpreter because

criminal defendants have a right to have

an interpreter sit at the defense table

to effectuate simultaneous communication

with counsel. Counsel’s argument raises

at least two questions in this case: (1)

what are the statutory duties of a

district court when non-English speaking

defendants are before it?; and (2) what

right does a defendant in a criminal

trial have regarding an interpreter?

One of the purposes of the CIA is "to

ensure that the defendant can comprehend

the proceedings and communicate

effectively with counsel" through the

appointment of a certified interpreter.

United States v. Febus, 218 F.3d 784, 791

(7th Cir. 2000). However, the CIA was not

enacted to "create new constitutional

rights for defendants or expand existing

constitutional safeguards"; rather, the

CIA was enacted "to mandate the

appointment of interpreters under certain

conditions and to 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."

United States v. Joshi, 896 F.2d 1303,

1309 (11th Cir. 1990) (citing H.R.Rep.

No. 1687, 95th Cong., 2d Sess. at 2-4

(1978), reprinted in, 1978 U.S.Code Cong.

& Admin.News 4652, 4652-54). We afford

district judges wide discretion in

assuring that the CIA’s purposes are

realized in their courtrooms. See Febus,

218 F.3d at 791-92.

District judges are entrusted with great

discretion because defendants do not have

an automatic right to an interpreter

under sec. 1827(d). Rather, a defendant

is only statutorily entitled to the

appointment of an interpreter if the

district court determines that the

defendant: (1) speaks only or primarily a

language other than the English language;

and (2) this fact inhibits their

comprehension of the proceedings or

communication with counsel. In making

this determination, a district court must

evaluate a "’variety of factors,

including defendant’s knowledge of

English and the complexity of the

proceedings and testimony . . . .’" Id.

at 791. District courts have a duty to

evaluate these factors when put on notice

that the defendant speaks only or

primarily a language other than English.

See 28 U.S.C. sec. 1827(d)(1). District

courts may be put on notice by motion of

the parties, or by the court’s own

recognition, when it is clear that the

defendant’s communication with the court

or counsel is inhibited by language. Once

a district court is on notice, it has a

duty to inquire as to whether the fact

that the defendant speaks only or

primarily a language other than English

inhibits his or her ability to comprehend

the proceedings and communicate with

counsel. Since the district court is best

positioned to make this evaluation, we

review the decision of whether to appoint

an interpreter and how to use the

interpreter for abuse of discretion. See

United States v. Rosa, 946 F.2d 505, 508

(7th Cir. 1991) (citing United States v.

Moya-Gomez, 860 F.2d 706, 740 (7th Cir.

1988)).

In this case, the district court

appointed an interpreter to ensure that

the defendants could comprehend the

proceedings through simultaneous

translation. There is also no question

that the interpreter was qualified and

adequately translated the proceedings.

The problem, according to the defendants,

was that since they could only

communicate with their attorneys via the

one court-appointed interpreter when

breaks in testimony were requested, they

were denied the opportunity to

simultaneously communicate with their

attorneys. Similar factual scenarios have

been encountered by other circuit courts.

For example, the Eleventh Circuit in

United States v. Bennett was presented

with the exact same issue as in this

case; specifically, whether the district

court had abused its discretion by

failing to supply individual court-

appointed interpreters to each of the

Spanish-speaking defendants in a multi-

defendant trial. See 848 F.2d 1134, 1139-

41 (11th Cir. 1988). The district court

appointed one interpreter who

simultaneously translated the proceedings

from English to Spanish through a

microphone that fed into headsets worn by

the defendants. See id. at 1140. The

defendants asked the district court for

the appointment of an individual

interpreter for each defendant so that

they could communicate with their counsel

at the defense table. See id. The

district court denied the request. See

id. Instead, the district court "offered

to recess the proceedings at any time

they needed to consult their attorneys

through the interpreter." See id. at

1141. The district court never denied any

requests for such a recess. See id. On

appeal, the Eleventh Circuit held that

"the district court’s appointment of a

single interpreter satisfied the

requirements of the [CIA]." Id. at 1140.

Further, in United States v. Sanchez,

the Sixth Circuit addressed a somewhat

similar situation. See 928 F.2d 1450,

1454-56 (6th Cir. 1991). The district

court had appointed two interpreters, one

for each defendant at the defense table

to aid in communicating with counsel. See

id. at 1454. At one point during the

trial, the district court borrowed one of

the interpreters to translate the

testimony of a Spanish-speaking

government witness. See id. This meant

that both defendants had to share the

other interpreter while the witness

testified. See id. On appeal, defendants

said that this prevented them "from

effectively communicating with counsel

during a critical stage of their trial."

Id. The court held that the CIA does not

require that each defendant be provided

with a personal interpreter. See id. at

1455. In so holding, the court stated:

There is nothing in the language of the

[CIA] or in the legislative history which

requires every defendant in a multi-

defendant criminal action be provided

with his own individual interpreter. To

the contrary, the [CIA] itself authorizes

the use of a single interpreter in multi-

defendant cases.

* * *

When utilizing a single interpreter

during a multi-defendant action, the

district court must always be cognizant

of the underlying purposes of the [CIA].

The district court must provide each

defendant the time and the ability to

confer effectively with counsel

throughout the proceedings.

Id. at 1455-54; see United States v. Yee

Soon Shin, 953 F.2d 559, 561 (9th Cir.

1992) (finding no error when district

court appointed one interpreter for two

defendants and holding that the CIA does

not require separate interpreters for

each defendant in multi-defendant cases);

United States v. Lim, 794 F.2d 469, 471

(9th Cir. 1986) (finding no error where

communication with counsel was by means

of notes and during breaks).

In the case at hand, the record reveals

that the district court was not notified

about the defendants’ communication

problems with counsel until defense

counsel first raised the concern during

the testimony of the third prosecution

witness. When the court was put on

notice, it was not an abuse of discretion

for the district court to agree with the

solution proposed by defense counsel

because it fulfilled the purpose of the

CIA. The solution ensured that the defen

dants could communicate with counsel,

albeit during breaks in testimony. A

district court certainly may decide that

the appointment of an additional

interpreter would be the preferable

solution in a case. But, the plain

language of the CIA does not mandate the

appointment of an additional interpreter

to sit at the defense table. The CIA

provides for simultaneous interpretation

of the proceedings, not simultaneous

interpretation of attorney-client

communications. As long as the district

court, when put on notice, adopts a

solution that removes the inhibition on

communication with counsel, we cannot say

that the district court abused its

discretion.

B. The Fifth and Sixth Amendments to the

United States Constitution

The United States Supreme Court has yet

to recognize the right to a court-

appointed interpreter as a constitutional

one. But, in 1907, the Supreme Court

stated: "One [claim] is that the court

erred in refusing to appoint an

interpreter when the defendant was

testifying. This is a matter largely

resting in the discretion of the trial

court, and it does not appear from the

answers made by the witness that there

was any abuse of discretion." Perovich v.

United States, 205 U.S. 86, 91 (1907). It

was not until 1970 that a circuit court

held that an indigent criminal defendant

who could not speak or understand English

was constitutionally entitled to an

interpreter. See Negron v. New York, 434

F.2d 386, 387 (2d Cir. 1970). In 1985,

our Circuit held in response to a

defendant’s challenge that the lack of an

interpreter denied him due process that

"a defendant in a criminal proceeding is

denied due process when: (1) what is told

to him is incomprehensible; (2) the

accuracy and scope of a translation at a

hearing or trial is subject to grave

doubt; (3) the nature of the proceeding

is not explained to [the defendant] in a

manner designed to insure his full

comprehension; or (4) a credible claim of

incapacity to understand due to language

difficulty is made and the district court

fails to review the evidence and make

appropriate findings of fact." United

States v. Cirrincione, 780 F.2d 620, 634

(7th Cir. 1985). We found that the

district court had properly determined

that the defendant could understand

English and that an interpreter had been

made available, but that the defendant

did not use the interpreter. See id. at

634. A handful of other cases from

various circuits have since also

recognized such a constitutional right.

See, e.g., United States v. Mayans, 17

F.3d 1174, 1179-81 (9th Cir. 1994)

(holding that the defendant’s Fifth

Amendment rights were violated when

interpreter withdrawn by court); Sanchez,

928 F.2d at 1456 (recognizing a

constitutional right to an interpreter,

but rejecting defendants’ Sixth Amendment

claim because there was no abuse of

discretion); Bennett, 848 F.2d at 1141

(recognizing a constitutional right to an

interpreter, but holding that "the

court’s use of a single interpreter [did

not] violate [the defendant’s] rights

under the sixth amendment"); United

States v. Carrion, 488 F.2d 12, 14-15

(1973) (recognizing a constitutional

right to an interpreter, but holding that

the district court did not abuse its

discretion in not appointing one because,

in part, defendant and counsel did not

explain the problem to the court); Yee

Soon Shin, 953 F.2d at 561 (recognizing a

constitutional right to an interpreter,

but finding that the district court’s

appointment of only one interpreter was

not an abuse of discretion because

defendants did not object). As under the

CIA, the appointment of an interpreter as

a constitutional matter is within the

district court’s discretion.

In this case, the defendants’ ability to

communicate with counsel was effectuated

by the interpreter adequately during

breaks in the testimony. See, e.g.,

Joshi, 896 F.2d at 1311 n.8 ("Even if the

district court had not acted prudently by

appointing a second translator, Joshi’s

sixth amendment rights would not have

been violated if the court had permitted

brief recesses to allow client-attorney

communications when requested."). The

district court never denied any requests

for breaks. 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. The record reflects that the

defendants’ communication with counsel

was not constitutionally infirm.

II. Evidentiary Arguments

Salazar, Santa Cruz, and Guzman contend

that the district court abused its

discretion by allowing into evidence a

bank deposit receipt found in the Days

Inn hotel room, revealing that Santa Cruz

had deposited 34,000 pesos in Salazar’s

bank account in Mexico in September of

1998, about two months prior to the

charged crime. The government sought to

admit the receipt as evidence that Santa

Cruz and Salazar knew each other prior to

engaging in the charged crime. Further,

Salazar asserts that the district court

abused its discretion by allowing

evidence that he had made two prior trips

to the same area in Illinois--one in July

1998, where Salazar met Johnson and

Holguin at the same Days Inn and the

other in September 1998 where Salazar met

Johnson at the same hotel. The government

sought to admit the evidence to rebut

Salazar’s contention that he was

approached by a stranger in the hotel and

offered money to help unload Mexican

candy from a truck into a van. Defendants

contend that the receipt was offered to

show that the money was from a prior drug

transaction and evidence of the trips was

offered to show that they were really

trips to conduct drug transactions. They

say that there was no proof that these

pieces of evidence arose from criminal

activity, and thus 404(b) was violated

because these were neither prior crimes

nor prior bad acts.

The district court ruled that evidence

of the receipt and the trips was

admissible since it was intricately

related to the crimes charged and was

admissible under 404(b). We review for

abuse of discretion. See United States v.

Ward, 211 F.3d 356, 362 (7th Cir. 2000).

Generally, evidence of other crimes,

wrongs, or acts may be admissible if it

satisfies the four-part test developed

pursuant to Fed. R. Evid. 404(b). See

United States v. Asher, 178 F.3d 486, 492

(7th Cir. 1999). However, evidence of

other acts which are intricately related

to the facts of the case is admissible

without hindrance by Rule 404(b) as long

as the Rule 403 balancing test is

satisfied. See Ward, 211 F.3d at 362.

Evidence may be intricately related if it

helps complete the story of the charged

crime or tends to prove any element of

the crime. See United States v. Ryan, 213

F.3d 347, 350 (7th Cir. 2000); United

States v. Ramirez, 45 F.3d 1096, 1102

(7th Cir. 1995).

We do not see that this evidence is

"evidence of ’other acts’ within the

meaning of Fed. R. Evid. 404(b)."

Ramirez, 45 F.3d at 1102; see United

States v. Elder, 16 F.3d 733, 737 (7th

Cir. 1994). Defendants correctly state

that evidence of uncharged criminal

activity is admissible without regard to

Rule 404(b) if it is intricately related

to the facts of the case, and argue that

this evidence was not intricately related

because there was no proof that the money

deposited or the prior trips were related

to any sort of prior drug activity.

However, the receipt and evidence of the

prior trips were not introduced as

evidence of uncharged prior criminal

activity. Rather, the evidence served to

demonstrate that these men knew each

other well before the charged crime. This

evidence was particularly important since

they initially disputed knowing one

another. To show that these men knew one

another and had some form of prior

relationship, even if "noncriminal" in

nature, was certainly relevant to the

story of the case.

Furthermore, the probative value

outweighed any prejudice because the

evidence rebutted any defense suggestion

that these men were unaware of their

actions or did not know one another. The

defendants argue that the receipt and

evidence of the prior trips created an

impermissible inference that this

evidence was drug-related. We believe

that any possibility that such an

inference prejudiced defendants was cured

by the limiting instruction provided to

the jury. The instruction instructed the

jury to consider this evidence as only

evidence of intent, knowledge, or absence

of mistake. "This was not the

introduction of evidence concerning acts

wholly unrelated to the case which the

prohibition of character evidence

contained in Fed. R. Evid. 404(b) is

designed to prevent." Ramirez, 45 F.3d at

1103.

Therefore, we hold that the district

court did not abuse its discretion by

admitting this evidence, which, in any

event would have been harmless in light

of the overwhelming evidence of guilt.

III. Constructive Amendment to the

Indictment

Salazar further argues that the evidence

of the prior trips constituted a

constructive amendment to the indictment

by broadening the scope of the conspiracy

charged. See United States v. Cusimano,

148 F.3d 824, 828 (7th Cir. 1998).

However, "[t]he introduction of evidence

of pre-conspiratorial events does not by

itself create a constructive amendment to

the indictment." Id. This is particularly

true if the evidence is found to be

intricately related to the crime charged.

See id. (citing United States v. Spaeni,

60 F.3d 313, 316 (7th Cir. 1995)). As

Salazar did not raise this contention to

the district court, we review it for

plain error.

The jurors were given a limiting

instruction as to the prior trip evidence

and the time frame of the charged

conspiracy was expressly laid out to the

jury. With these safeguards in place, we

do not believe that the admission of this

evidence caused the jury to broaden the

scope of the crimes charged in rendering

its verdict. Thus, we hold that no plain

error occurred.

IV. U.S.S.G. sec. 3B1.2

Salazar and Santa Cruz argue that the

district court clearly erred by refusing

to grant them a sentence reduction under

U.S.S.G. sec. 3B1.2,/1 which states:

Based on the defendant’s role in the

offense, decrease the offense level as

follows:

(a) If the defendant was a minimal

participant in any criminal

activity, decrease by 4 levels.

(b) If the defendant was a minor

participant in any criminal activity,

decrease by 2 levels.

In cases falling between (a) and (b),

decrease by 3 levels.

A minimal participant is one who is

"plainly among the least culpable of

those involved in the conduct of a

group," while a minor participant is one

"who is less culpable than most other

participants." U.S.S.G. sec. 3B1.2, cmt.

n.1, 3. "As we have repeatedly held, the

relevant inquiry is whether the defendant

was a minor [or minimal] participant in

the crime for which he was convicted, not

whether he was a minor [or minimal]

participant in some broader conspiracy

that may have surrounded it." United

States v. Brown, 136 F.3d 1176, 1185-86

(7th Cir. 1998) (citing United States v.

Burnett, 66 F.3d 137, 140 (7th Cir.

1995)); see United States v. Isienyi, 207

F.3d 390, 392 (7th Cir. 2000); United

States v. Neeley, 189 F.3d 670, 684 (7th

Cir. 1999); United States v. Griffin, 150

F.3d 778, 787 (7th Cir. 1998). Since

determining one’s role in the offense is

a fact-based inquiry, we review the

district court’s decision for clear

error, which exists when, after reviewing

the evidence, we are left with the

definite and firm notion that a mistake

was made. See United States v. Hunte, 196

F.3d 687, 694 (7th Cir. 1999).

At sentencing, the district court

assigned Salazar and Santa Cruz a base

offense level of 38 and a criminal

history category of I, resulting in a

range of 235 to 293 months imprisonment.

The court set Salazar’s sentence on both

Counts 1 and 2 at 235 months, to run

concurrently, and Santa Cruz’ sentence at

235 months on Count 2. In setting Salazar

and Santa Cruz’ base offense level, the

district court held that each of the

defendants had possessed all of the 500

some kilograms of cocaine in the truck.

Thus, in denying each defendant a minor

or minimal role reduction, the court

found that since each had possessed all

of the cocaine, nobody was a less

culpable player./2 The court expressed

that while it believed that none of the

defendants were managers, supervisors,

organizers, or kingpins, it also believed

that none of them were merely minimal or

minor participants. See Sentencing Tr. at

28, 47.

"When no conduct of other participants

in a criminal scheme is attributed to a

defendant for purposes of sentencing, our

cases hold that he is not entitled to a

sentencing discount because he is a minor

or minimal participant in some larger

criminal activity of which the conduct

for which he is being punished is a

part." United States v. Cruz, 233 F.3d

492, 493 (7th Cir. 2000) (citing Almanza,

225 F.3d at 846; United States v. Hamzat,

217 F.3d 494, 497 (7th Cir. 2000);

Isienyi, 207 F.3d at 392). Almanza says

that a sentencing discount under U.S.S.G.

sec. 3B1.2 may be possible if a defendant

is charged with and convicted of multiple

transactions in a conspiracy and he or

she only participated in some of them,

but not all, or a reduction may be

possible if a defendant is charged in a

conspiracy, whether consisting of one or

many transactions, and he or she only

played a small role (such as a "lookout")

in the transaction(s). See 225 F.3d at

847. Defendants argue that this latter

possibility applies to them.

Salazar and Santa Cruz contend that the

court’s decision was clearly erroneous

because their role in the offense was

small; they were just "cogs in a wheel."

Defendants ask that the 500 some

kilograms of cocaine be divvied up and

that only the amount of cocaine that they

personally unloaded from the truck ought

to be attributed to them for sentencing

purposes. They argue that they were

charged with all of the group’s conduct

even though they only moved the boxes

around in the trailer and only unloaded

one box before they were arrested. They

point out that they were not involved in

driving the truck up from Texas (which

was Johnson’s job), nor was it their

responsibility to drive the van away

(which was Guzman’s job). They liken

their role more like that of the

defendant in Hunte. In Hunte we remanded

to the district court to enter a sentence

reduction for at least minor and possibly

minimal participation for a defendant in

a drug distribution group who helped hide

the group’s activities by closing the

blinds and registering for a motel room,

but who was neither a courier nor a

helper in loading and unloading the

drugs. See 196 F.3d at 693-94.

But this case is different. We agree

with the district court that Salazar and

Santa Cruz’ roles in the offense were

more culpable than they have argued. See

United States v. Kerr, 13 F.3d 203, 206

(7th Cir. 1993) (explaining that one who

plays a lesser role than others is not

necessarily a minor participant). The

district court found that all of the

defendants exercised total control over

all of the cocaine and thus were all

equally culpable for it. Furthermore, no

additional relevant conduct beyond the

drugs involved in this case was

attributed to the defendants. After

reviewing the record, we find that the

district court did not clearly err in

denying Salazar and Santa Cruz a

mitigating role adjustment.

V. Anders Brief

Defendant Johnson’s appointed appellate

attorneys move to withdraw under Anders

v. California, 386 U.S. 738 (1967),

because they believe that no nonfrivolous

issues for appeal exist. Johnson was

notified that he could respond to the

Anders brief pursuant to Circuit Rule

51(b), but he did not. Since the Anders

brief is facially adequate, we review

only the issues it raises. See Febus, 218

F.3d at 797 (citing United States v.

Tabb, 125 F.3d 583, 584 (7th Cir. 1997)

(per curium)). Counsel considered

whether: (1) the district court erred in

admitting into evidence prior bad acts,

Johnson’s affidavit filed at his

preliminary hearing, and the government’s

expert testimony; (2) Johnson was denied

a fair trial because he wore a prison

jumpsuit throughout the trial; (3) the

evidence was sufficient; and (4) any

errors in sentencing existed. Upon

examination of the record and the law, we

find ourselves in full agreement with

counsel that these grounds for appeal are

frivolous. See id. (quoting United States

v. Wagner, 103 F.3d 551, 553 (7th Cir.

1996)). Therefore, we grant counsel’s

motion to withdraw from the case and

dismiss Johnson’s appeal.

CONCLUSION

The district court’s judgment as to all

issues raised is hereby AFFIRMED.

/* Appeal No. 99-3902 was submitted for decision

without oral argument.

/1 A joint brief was submitted by Guzman, Santa

Cruz, and Salazar, in which they presented a

general sketch of the law and a general argument

for this sentence reduction. A footnote in the

joint brief stated that the "individual arguments

of the defendants as to the particular circum-

stances which demonstrate their minimal role in

the group’s conduct will be made in their supple-

mental briefs." Only Salazar and Santa Cruz

submitted supplemental briefs, which presented

specific arguments on this issue. Guzman relied

on the generalities in the joint brief, which is

not enough because it did not apply the specific

facts regarding his involvement in the offense.

We will not construct Guzman’s argument for him,

and thus we hold that his claim under U.S.S.G.

sec. 3B1.2 is waived. See DeSilva v. DiLeonardi,

181 F.3d 865, 867 (7th Cir. 1999) ("A brief must

make all arguments accessible to the judges,

rather than ask them to play archaeologist with

the record.").

/2 The district court acknowledged that the jury had

acquitted Santa Cruz of the conspiracy charge and

only convicted him of possession. Yet, the court

said the following to him in denying a reduction:

"as to the count with which you were found guilty

[possession], you have equal culpability with the

other two individuals [Salazar and Guzman].

Therefore, your role in the offense is neutral,

resulting in neither an enhancement [for being an

organizer] nor a reduction [for being a minor or

minimal participant]." Sentencing Tr. at 47.