United States v. Sandoval, Hector

In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-1004

UNITED STATES OF AMERICA,

Plaintiff -Appellee,

v.

HECTOR SANDOVAL,

Defendant-Appellant.

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Appeal from the United States District Court

for the Central District of Illinois.

No. 99 CR 40019—Joe Billy McDade, Chief Judge.

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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