The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-2357, 01-2543, 01-2996, and 01-4229
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS GONZALEZ, ALPHONSO CHAVEZ,
JAIME RODRIGUEZ, and DAVID C. PEREZ,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 410—Elaine E. Bucklo, Judge.
____________
ARGUED NOVEMBER 5, 2002—DECIDED FEBRUARY 6, 2003
____________
Before FLAUM, Chief Judge, and CUDAHY and COFFEY,
Circuit Judges.
FLAUM, Chief Judge. Luis Gonzalez, Jamie Rodriguez,
Alphonso Chavez, and David C. Perez were all involved in
a scheme to possess and distribute drugs. After Perez
was stopped and arrested while transporting drugs in a
truck, he agreed to participate in a controlled delivery,
which led to the arrests of Gonzalez, Rodriguez and Chavez.
After trial Gonzalez and Rodriguez were found guilty of
conspiring to possess with the intent to distribute in ex-
cess of five kilograms of cocaine in violation of 21 U.S.C.
§ 846 and attempt to possess with the intent to distribute
2 Nos. 01-2357, 01-2543, 01-2996, and 01-4229
in excess of five kilograms of cocaine in violation of 21
U.S.C. § 846. Chavez, though he was charged with both
conspiracy and attempt, was found guilty only of the
conspiracy charge. Perez pleaded guilty to possession with
the intent to distribute in excess of 5 kilograms of cocaine,
in violation of 21 U.S.C. § 841(a)(1). Rodriguez was sen-
tenced to 151 months imprisonment; the other three de-
fendants were sentenced to 235 months imprisonment. Pe-
rez appeals his sentence. Rodriguez, Gonzalez, and Chavez
appeal numerous evidentiary rulings by the district court.
Rodriguez and Chavez additionally appeal their sentences.
For the reasons stated herein, we affirm.
I. Background
On March 24, 2000, Perez was driving a watermelon
truck on Interstate 57 near Effingham, Illinois. Perez
was pulled over by a state trooper for driving 59 miles
per hour where the posted speed limit was 55 miles per
hour. Perez consented to a search, which uncovered 130
kilograms of cocaine. Perez claimed that he believed he
was transporting marijuana and not cocaine. Perez agreed
to cooperate with the police in a controlled delivery.
He told the police that he was going to be paged and
given further instructions for the delivery. While he was
cooperating, Perez received a page from a cellular phone
that was later recovered from defendant Gonzalez. Perez
called the number from the police station and engaged in
a conversation with Gonzalez, which the police recorded.
Gonzalez told Perez to call back when he was closer to
Chicago.
Perez, along with law enforcement agents, went to a
Comfort Inn in Bolingbrook, Illinois. During a series of
phone conversations between Gonzalez and Perez, a meet-
ing at the Comfort Inn was arranged. Gonzalez and Rodri-
guez showed up at the Comfort Inn in a brown car without
Nos. 01-2357, 01-2543, 01-2996, and 01-4229 3
license plates at 2:30 a.m. on March 25. The men met in
a room at the Comfort Inn and discussed getting a ware-
house for delivery.
Meanwhile Chavez received a call from his brother
Ramon asking him to get a warehouse ready. Chavez
secured a warehouse in Des Plaines, Illinois, by bribing
employees of the warehouse. He secured the warehouse
for use at 7:00 p.m. on March 25. At trial Chavez claimed
that he believed he was securing a warehouse for the
purpose of “souping-up” a truck for a tractor pull.
During the day on March 25, Gonzalez spoke with Perez
on the phone and set up a meeting at a McDonald’s res-
taurant at an oasis in Des Plaines, Illinois, at 6:00 p.m.
After delivering the watermelons on the truck, Perez
went to the oasis. At 6:30 p.m. Perez entered the McDon-
ald’s and met Gonzalez there. Chavez arrived at 6:40 with
his brother Ramon. Rodriguez, who had come with Gon-
zalez, was at the oasis but may have never entered the
McDonald’s. Ramon told Chavez to go ahead and meet
them at the warehouse. Chavez did so. After the meeting
Gonzalez and Ramon went to a tool store and then pro-
ceeded to the warehouse. Perez, following Rodriguez who
was in a minivan, drove the truck to the warehouse.
At the warehouse Chavez took care of paying the ware-
house employees. Rodriguez and Perez drove the minivan
and the truck into the warehouse with Chavez. After
the vehicles were in the warehouse and the doors were
closed, the law enforcement officers gave an arrest signal
and entered the warehouse. Chavez and Rodriguez tried
to run but were caught and arrested. Gonzalez and Ramon,
who were pulling up to the warehouse at the time, at-
tempted to flee in their vehicle. A chase ensued but in the
end they were arrested.
During the arrests numerous pieces of evidence were
recovered, including Gonzalez’s wallet and cell phones
4 Nos. 01-2357, 01-2543, 01-2996, and 01-4229
and other personal effects belonging to the various defen-
dants.
Perez entered into a plea agreement by which he agreed
to testify against the other participants. In front of the
grand jury Perez provided the testimony against the
others as agreed. Rodriguez, Gonzalez, Perez and Chavez
were all indicted. Ramon was not indicted. Prior to trial
Perez withdrew from his plea agreement, although he still
pleaded guilty. At the trial of Gonzalez, Rodriguez and
Chavez, Perez testified as to his own involvement, but
when asked about the involvement of the others, he stated
that he was unable to remember the details.
In the end Gonzalez and Rodriguez were convicted on
charges of conspiracy and attempt to possess cocaine.
Chavez was convicted on the conspiracy charge. Perez
pleaded guilty to a possession charge. Rodriguez received
a downward adjustment because of his deportable status
and was sentenced to 151 months. The other defendants
were all sentenced to 235 months.
The defendants appeal, each bringing various chal-
lenges to the district court’s evidentiary rulings and/or to
their respective sentences. We review these challenges
in turn.
II. Discussion
a. Challenges Based on the Constitutional Rights of Perez
Gonzalez, Rodriguez and Chavez argue that their con-
victions should be reversed because the initial stop of
Perez violated his constitutional rights. They advance
that Perez was stopped as a result of racial profiling. This
argument must fail because no one other than Perez can
establish standing to assert Perez’s constitutional rights.
See United States v. Jackson, 189 F.3d 502, 507-08 (7th
Cir. 1999).
Nos. 01-2357, 01-2543, 01-2996, and 01-4229 5
This court does not accept the invitation to create an
unprecedented exception to constitutional rules of stand-
ing based on Gonzalez, Rodriguez and Chavez’s theory
that racial profiling is “so contrary to the general welfare
of America” as to warrant special standing considerations.
b. Translation of “Descompuesto”
At trial Gonzalez testified about why he brought the
truck to the warehouse. In Spanish he described the truck
as “descompuesto.” The interpreter translated this as
“broken down.” Seizing on this in cross-examination, the
prosecution attempted to show that Gonzalez was lying.
The prosecutor’s questions were based on the theory that
a “broken down” truck could not be driven and thus,
since Gonzalez drove it, the truck could not have been
“broken down.” After the testimony the translator in-
formed the judge that “broken down” was only a general
translation of “descompuesto” and the Spanish phrase did
not necessarily mean that the truck didn’t work; instead
it could mean that something was broken with the truck
but it was still functional. Gonzalez requested that the
court inform the jury of the interpreter’s comments re-
garding the translation; the court refused. On redirect
Gonzalez explained that the gears were dropping but
that the truck could still operate.
Gonzalez, Rodriguez, and Chavez now challenge the
district court’s refusal to inform the jury of the inter-
preter’s comments. We review the district court’s eviden-
tiary ruling for abuse of discretion. United States v.
Thomas, 294 F.3d 899, 904 (7th Cir. 2002); United States v.
Hook, 195 F.3d 299, 305 (7th Cir. 1999). Translation of
a foreign language is generally considered a factual ques-
tion and entrusted to the jury. United States v. Zambrana,
841 F.2d 1320, 1335 (7th Cir. 1988). A translation is suf-
ficiently accurate if it “reasonably conveys the intent or the
6 Nos. 01-2357, 01-2543, 01-2996, and 01-4229
idea of the thought spoken.” Id. at 1337. In this case the
translation did just that. While the prosecutor question-
ing Gonzalez may have tried to snag Gonzalez by imply-
ing that “broken down” can only mean nonfunctional, this
is simply not true. “Broken down,” just like “descompuesto,”
has various degrees of interpretation including the im-
plication of a poor but functional condition. As such it
was proper for the district court to decline to explain the
phrase to the jury and to instead allow the defense a
redirect examination on the meaning of the term.
c. The Attorney’s Business Card
During trial Gonzalez’s wallet was introduced into
evidence and sent back with the jury. After the trial it
was discovered that the wallet contained a business card
bearing the name of Chavez’s attorney. Neither Chavez nor
Gonzalez was informed that the wallet contained this
business card when it was sent to the jury. Chavez and
Gonzalez bring separate challenges relating to this busi-
ness card.
i. Chavez’s Challenge
Chavez claims there was a Sixth Amendment violation
because the business card was evidence introduced to the
jury and he did not have a chance to confront this evi-
dence. He argues that this evidence was crucial in the
jury’s finding against him because it tied him to the
conspiracy. Although it found that the inclusion of the
business card in Gonzalez’s wallet was a Sixth Amend-
ment violation, the district court ruled that the error
was harmless.
While the government urges us to part from the dis-
trict court and hold that there was no Sixth Amendment
violation, we decide this issue solely on the harmless
Nos. 01-2357, 01-2543, 01-2996, and 01-4229 7
error grounds—leaving the constitutional inquiry for
another day. Even where the jury has been exposed to
evidence that is not properly before it, a defendant is not
automatically entitled to a new trial. United States v.
Paneras, 222 F.3d 406, 411 (7th Cir. 2000). A new trial is
mandated only where there is a reasonable possibility that
the evidence had a prejudicial effect. Id.
There is no reasonable possibility that the evidence
in question here had a prejudicial effect. Chavez argues
that the business card provides the crucial link between
him and the other conspirators. This argument com-
pletely ignores the evidence that Chavez arranged the
warehouse, attended the meetings between the conspira-
tors, and was present at the delivery point of the drugs
when the arrests were made. This evidence overwhelm-
ingly ties Chavez to the conspiracy and renders the jury’s
exposure to the business card harmless.
ii. Gonzalez’s Challenge
The government introduced into evidence pieces of
paper—found in Gonzalez’s wallet—containing notations
relating to drugs. Gonzalez claimed that these papers
ended up in his wallet as a result of the mishandling of
evidence. Gonzalez argues that the presence of the busi-
ness card bearing the name of Chavez’s attorney sup-
ports this argument. Thus, Gonzalez claims, the govern-
ment, by not informing him of the presence of the business
card, suppressed favorable evidence in violation of Brady
v. Maryland, 373 U.S. 83 (1963). The flaw in Gonzalez’s
argument is that to succeed on a Brady challenge a defen-
dant must first show that the government “suppressed”
the evidence. United States v. Earnest, 129 F.3d 906, 910
(7th Cir. 1997). And we have held that evidence is not
regarded as “suppressed” when it can be accessed before
trial by the exercise of reasonable diligence. Id. Here the
8 Nos. 01-2357, 01-2543, 01-2996, and 01-4229
attorneys could have—and should have—gone through the
wallet before trial as well as when the wallet was admit-
ted into evidence. A defense lawyer’s failure to inspect
the evidence that has been admitted does not qualify as
a government “suppression.”
d. The Phone Transcripts
At trial the prosecution introduced into evidence English
language transcripts of recorded phone conversations
between Perez and the other defendants. The officer
who monitored the conversations had placed the date
and time of the calls at the top of each transcript. These
transcripts were admitted into evidence and published
to the jury with no objections.
At the close of evidence the defendants objected to the
dates and times. The government agreed to have them
redacted before sending the transcripts to the jury. But
the jury noticed the missing dates and requested to see
the transcripts with the dates and times. The court found
that the transcripts had been received into evidence and
published to the jury with the dates and times and should
go to the jury as such. Gonzalez, Rodriguez, and Chavez
now challenge this decision.
The defendants did not object to the initial admission
into evidence of the transcripts with the dates and
times; they have therefore forfeited their objection. When
an issue is forfeited we only review for plain error. United
States v. Bonner, 302 F.3d 776, 780 (7th Cir. 2002). Under
the plain error standard, the defendants have to show
not only that the court abused its discretion in admitting
the evidence but also that the admission prejudiced them
by influencing the verdict. Id. The defendants provide
very little to support their argument that the admission
was an abuse, especially given that the officer testified
as to his practice of handling transcripts—this would
Nos. 01-2357, 01-2543, 01-2996, and 01-4229 9
have provided a foundation for the admission of the
times and dates. Furthermore, the defendants provide
no argument at all as to how the inclusion of the times
and dates on the transcripts prejudiced their cases. The
admission therefore was not plain error.
e. The Questioning of Perez
Gonzalez, Rodriguez, and Chavez challenge the gov-
ernment’s questioning of Perez. Perez had originally en-
tered into a plea agreement with the government, but
prior to trial he withdrew from this agreement. When
asked why he withdrew from the plea agreement, Perez
testified that he had withdrawn from the agreement
because he did not want to plead guilty to transporting
cocaine when he thought it was marijuana. The government
attempted to impeach Perez by asking if his withdrawal
from the agreement was actually a result of being afraid.
The prosecutor specifically asked Perez about a conver-
sation that had transpired between the prosecutor and
Perez. The prosecutor asked Perez if the prosecution had
explained the witness security program and if Perez
was so scared that he did not want to testify. At sidebar
the district court inquired as to whether the prosecutor
had a basis to ask these questions. The prosecutor re-
sponded that Perez had told him he was afraid. The
defendants objected, stating that there was nothing in the
record to support these questions and that the pros-
ecutor would have to become a witness himself. The
court allowed the questioning. Perez denied being afraid.
On re-cross by a defense attorney, Perez also denied ever
having been threatened.
Gonzalez, Rodriguez and Chavez argue that the pros-
ecutor’s questions constitute testimony as to “extrajudicial
material” not based on any evidence in the record. While
we have serious reservations as to the appropriateness
10 Nos. 01-2357, 01-2543, 01-2996, and 01-4229
of this line of questioning, we need not resolve this chal-
lenging issue because even if the questioning was im-
permissible it constituted harmless error. The government’s
questioning never directly suggested that Perez had
been threatened, Perez denied being afraid, and on re-
cross Perez denied having ever been threatened. Addition-
ally, given the enormity of the other evidence against
the defendants in this case, we are not convinced that
the jury’s decision turned on the unsubstantiated implica-
tion that Perez may have been afraid to testify. We have
no doubt that the jury would have reached the same
outcome regardless of this line of questioning. We con-
clude that any error in allowing the questioning, if it was
error, was harmless.
f. Jury Instructions
The defendants challenge the jury instructions on two
grounds. First they challenge the omission in the instruc-
tions of a definition for the terms “prohibited drug” and
“possession.” This challenge has been waived because
the defendants accepted the relevant instructions—they
affirmatively stated in court, “No objection.” Such affirma-
tion is an intentional relinquishment of a right and pre-
cludes a party from seeking appellate review. See United
States v. Anifowoshe, 307 F.3d 643, 650 (7th Cir. 2002).
Second, the defendants challenge the inclusion of an
“ostrich” instruction. We review the district court’s deci-
sion to give the instruction for an abuse of discretion.
United States v. Mabrook, 301 F.3d 503, 508 (7th Cir.
2002). This instruction is proper in cases such as this one
where all the defendants claimed a lack of knowledge
and the evidence in the record supports a possible infer-
ence of deliberate ignorance. Id. The district court did
not abuse its discretion in allowing the instruction.
Nos. 01-2357, 01-2543, 01-2996, and 01-4229 11
g. Sentencing Issues
i. Perez
Perez challenges his sentence on three grounds—
the upward adjustment for obstruction of justice, the
refusal to apply the “safety-valve” provision, and the de-
nial of a downward adjustment for acceptance of respon-
sibility. We deal with each in turn.
While Perez provided complete testimony against the
other defendants in front of the grand jury, at trial he
stated that he could not remember the facts as they
related to the others. The district court found this pur-
ported lack of memory to be perjury and thus a material
obstruction of justice. We review de novo whether the
district court made the appropriate findings to support
an obstruction of justice enhancement and the underly-
ing findings of fact are reviewed for clear error. United
States v. Jackson, 300 F.3d 740, 749 (7th Cir. 2002). Perez’s
claim that his testimony was not obstruction of justice
is not persuasive. The contention that Perez’s selective
inability to remember—at trial he still remembered every-
thing about his own involvement—was just a coincidence
is too incredible to merit further discussion. And the
argument that Perez’s obstruction was unrelated to his
case because it was at the trial of his co-defendants is
unavailing since the relevant sentencing guideline has
been amended to include obstruction in closely related
offenses. U.S.S.G. § 3C1.1 (1998).
The safety-valve provides an exception to the appli-
cable statutory minimum where a defendant provides the
government with complete information concerning the
offense. U.S.S.G. § 5C1.2. On the safety-valve issue Perez
argues that his false testimony at trial does not negate
the fact that he provided the government with complete
information. We review a district court’s determination
that a defendant is ineligible for the safety-valve for clear
12 Nos. 01-2357, 01-2543, 01-2996, and 01-4229
error. United States v. Williams, 202 F.3d 959, 964 (7th
Cir. 2000). In support of his argument Perez draws our
attention to United States v. Shrestha, 86 F.3d 935 (9th
Cir. 1996). In that case the Ninth Circuit upheld a district
court’s application of the safety-valve where the defen-
dant recanted his helpful testimony at trial. There are
two problems with Perez’s reliance on Shrestha. First,
Shrestha dealt with the question of whether a district
court was in clear error in allowing the downward ad-
justment, whereas today we are faced with the question
of whether the district court was in clear error in deny-
ing it. So the persuasive value of the precedent is very
limited. Second, this court has never gone as far as the
reasoning in Shrestha—indeed we have some reserva-
tions about the reach of its holding. But we are not re-
quired to decide that question today. We simply hold
that the district court did not clearly err in refusing
to apply the safety-valve adjustment here, where Perez
recanted his testimony and perjured himself at trial.
Because Perez dishonestly claimed to have forgotten the
information previously conveyed, the district court
found that Perez’s proffer was no longer reliable. Had
Perez “re-remembered” the information later, we would
have a different case in which he might have become re-
eligible for the safety-valve.
The third challenge Perez brings to his sentence is
that the district court erred in refusing to grant a down-
ward adjustment for acceptance of responsibility. We
review a sentencing court’s acceptance of responsibility
determination for clear error. United States v. Sandoval-
Gomez, 295 F.3d 757, 761 (7th Cir. 2002). Perez cooperated
extensively in the arrests of the other defendants. Without
Perez there would have been no initial arrests. Perez
pleaded guilty even after he had lost the protection of a
plea agreement. Throughout the proceedings he admit-
ted his guilt and never took a position necessitating a
Nos. 01-2357, 01-2543, 01-2996, and 01-4229 13
trial on the question of his culpability. The district
court nonetheless refused to grant a downward adjust-
ment for acceptance of responsibility. The district court
reasoned: “So I do find that he obstructed justice and I
know that that means that he cannot get acceptance of
responsibility. . . . It seems to me it is not accepting respon-
sibility to get up at trial and lie.” While there is a pre-
sumption that a defendant who obstructs justice cannot
get acceptance of responsibility, United States v. Travis,
294 F.3d 837, 840 (7th Cir. 2002), Perez is right in point-
ing out that this presumption can be overcome in extra-
ordinary cases, see, e.g., United States v. Mayberry, 272
F.3d 945, 949 (7th Cir. 2001); United States v. Lallemand,
989 F.2d 936, 938 (7th Cir. 1993). Perez argues that
this shows a legal error in that the district court judge
did not recognize the existence of an exception. The gov-
ernment acknowledges this point.1 They argue instead
that the district court provided an assessment of the ac-
ceptance of responsibility issue independent of the obstruc-
tion issue. The government suggests that this assessment
and the resulting conclusion that Perez did not accept
responsibility form the basis for the denial of the adjust-
ment. This argument is supported by the record. The
district court stated that even if it could grant accept-
ance of responsibility it would not have done so. Hence,
even if the district court did not recognize the extraordi-
nary case exception, such error did not affect the out-
come. The finding that Perez did not accept responsibility
is not clearly erroneous.
1
It is not entirely clear that this concession was necessary. Given
the limited scope of the extraordinary case exception and the
facts of this case it may have been possible that the district court
implicitly considered and rejected the extraordinary case excep-
tion argument in determining that it could not grant the down-
ward adjustment.
14 Nos. 01-2357, 01-2543, 01-2996, and 01-4229
ii. The Other Defendants
The challenges to sentencing brought by the other
defendants require only brief discussion. Chavez argues
that the district court should have adjusted his sentence
downward for his minor role in the offense. Rodriguez
argues that his sentence should have been adjusted down-
ward for his minimal, or alternatively minor, role in the
offense. We review a district court’s findings regarding
a defendant’s role in an offense for clear error. United
States v. Hamzat, 217 F.3d 494, 497 (7th Cir. 2000).
Given the fact that Chavez executed the important
task of securing the warehouse for delivery and Rodriguez
took part in planning the delivery, was present at the
warehouse for the delivery, and drove the minivan that
was to be used to take delivery, we cannot say that the
district court was clearly erroneous in finding that both
Chavez and Rodriguez played significant roles in the
offenses for which they were charged.
Chavez also challenges the upward adjustment he
received for obstruction of justice. As noted above we re-
view de novo whether the district court made the appro-
priate findings to support an obstruction of justice enhance-
ment and the underlying findings of fact are reviewed for
clear error. The obstruction of justice enhancement was
based on the story he told the district court regarding
his reasons for securing the warehouse. Chavez testified
that he had secured the warehouse because his brother
Ramon had called him and asked him to find a garage
where they could “soup-up” a truck for a tractor pull. The
district court found this story to be implausible and pre-
posterous and therefore adjusted Chavez’s offense level
upwards for obstruction of justice. Such a conclusion is not
clearly erroneous.
Rodriguez also challenges the court’s refusal to apply
the safety-valve provision to his sentence. As noted above
Nos. 01-2357, 01-2543, 01-2996, and 01-4229 15
we review a district court’s safety-valve determination for
clear error. Rodriguez testified at sentencing regarding
his involvement in the offense. During this testimony
Rodriguez testified that he had no idea drugs were in-
volved in the events of the day. The district court, not
surprisingly, found this testimony to be incredible and
refused to apply the safety-valve provision. That finding
was not clearly erroneous.
III. Conclusion
For the reasons stated above, the convictions and sen-
tences of all the appellants are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-6-03