United States v. Jose Garcia, Jr.

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 18-1890 & 18-2261

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE TRINIDAD GARCIA, JR., and

ALFONSO PINEDA-HERNANDEZ,

also known as Flaco,

Defendants-Appellants.

____________________

Appeals from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:15CR00200 — Jane Magnus-Stinson, Chief Judge.

____________________

ARGUED SEPTEMBER 20, 2019 — DECIDED JANUARY 22, 2020

____________________

Before WOOD, Chief Judge, and MANION and ROVNER, Cir-

cuit Judges.

MANION, Circuit Judge. Police found over 80 grams of red

methamphetamine in a car. The ensuing investigation—

dubbed “Code Red”—lead to the indictment of 12 people for

a drug-distribution conspiracy. Eleven, including Garcia,

pleaded guilty. Garcia argues the judge improperly enhanced

2 Nos. 18-1890 & 18-2261

his sentence based on a prior drug conviction. We agree with

Garcia. Pineda-Hernandez alone stood trial. He claims multi-

ple errors involving an alleged language-interpretation deba-

cle. He also argues the judge improperly augmented his sen-

tence based on his role. We disagree with Pineda-Hernandez.

I. GARCIA

Pleading guilty, Garcia admitted he participated in or

could have reasonably foreseen the distribution of about 3.5

kilograms of a mixture containing meth and at least 1 kilo-

gram of heroin. As he admitted the conspiracy involved over

500 grams of a mixture containing meth, he faced a statutory

range of 10 years to life in prison with no prior conviction for

a “felony drug offense.” 21 U.S.C. § 841(b)(1)(A)(viii).1 But he

faced a range of 20 years to life with one prior conviction for

a “felony drug offense.” Id. The government sought the 20-

year minimum based on Garcia’s conviction under Indiana

Code § 35-48-4-10(a)(1) for an offense that occurred in March

2014. At that time, Indiana banned manufacturing or deliver-

ing “marijuana, hash oil, hashish, or salvia.” (The crime was a

felony because the recipient or intended recipient was under

18. I.C. 35-48-4-10(b)(1)(A).) The district judge imposed the 20-

year mandatory minimum. Garcia appeals.

He concedes plain-error review applies as he failed to ob-

ject below. But he argues the judge plainly erred by treating

the prior conviction as a “felony drug offense” to enhance the

sentence. Under plain-error review, Garcia must show “(1) an

error occurred, (2) the error was plain, (3) it affected the de-

fendant’s substantial rights, and (4) it seriously affected the

1 Each citation to a statute references the version in effect at the rele-

vant time, unless otherwise noted.

Nos. 18-1890 & 18-2261 3

fairness, integrity, or public reputation of the proceedings.”

United States v. Pierson, 925 F.3d 913, 919 (7th Cir. 2019).

When Garcia committed the prior drug offense, Indiana’s

statute prohibited dealing in marijuana, hash oil, hashish, or

salvia. Here is the text of the statute, arranged in columns:

(a) A person who:

(1) knowingly or intentionally:

(A) manufactures;

(B) finances the manufacture of;

(C) delivers; or

(D) finances the delivery of;

marijuana, hash oil, hashish, or salvia,

pure or adulterated …

commits dealing in marijuana, hash oil, hashish,

or salvia, a Class A misdemeanor, except …

(b) The offense is:

(1) a Class D felony if:

(A) the recipient or intended re-

cipient is under eighteen (18)

years of age … .

I.C. 35-48-4-10.

The question is whether Garcia’s prior conviction under

this statute is a “felony drug offense” for purposes of the en-

hancement for his federal crime. Federal law defined “felony

drug offense” as:

4 Nos. 18-1890 & 18-2261

an offense that is punishable by imprisonment

for more than one year under any law of the

United States or of a State or foreign country

that prohibits or restricts conduct relating to

narcotic drugs, marihuana, anabolic steroids, or

depressant or stimulant substances.

21 U.S.C. § 802(44). Federal law also defined these particular

substances. “Narcotic drug” generally includes opium, opi-

ates, poppy straw, coca leaves, cocaine, ecgonine, and any

compound containing any of these substances. Id. § 802(17).

“Marihuana” generally means all parts of Cannabis sativa L.

and every compound of this plant. Id. § 802(16). “Anabolic

steroid” generally means any drug or hormonal substance re-

lated to testosterone. Id. § 802(41)(A). “Depressant or stimu-

lant substance” generally means a drug containing barbituric

acid or amphetamine, or lysergic acid diethylamide, or any

drug containing a substance the Attorney General designated

as having a potential for abuse because of its depressant, stim-

ulant, or hallucinogenic effect. Id. § 802(9). (Foreshadowing:

“felony drug offense” includes marijuana but not salvia.)

Courts use the categorical approach to determine whether

a conviction under a state statute meets § 802(44)’s definition

of “felony drug offense.” United States v. Elder, 900 F.3d 491,

497–501 (7th Cir. 2018). “The categorical approach focuses

solely on whether the elements of the crime of conviction suf-

ficiently match the elements of the crime referenced in the fed-

eral statute, while ignoring the particular facts of the case.” Id.

at 498 (internal quotation marks and brackets removed) (quot-

ing Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)). Under

the categorical approach, Garcia’s appeal is easy. The problem

for the government is salvia. The Indiana statute plainly

Nos. 18-1890 & 18-2261 5

prohibits it, but the federal definition of “felony drug offense”

plainly does not include it. So the Indiana statute is broader

than the federal definition. Indiana may convict a person for

violating I.C. 35-48-4-10 even though he never dealt with a

drug listed in the federal definition. Thus, under the categor-

ical approach, a conviction under I.C. 35-48-4-10 is not a “fel-

ony drug offense” and cannot raise the mandatory minimum

sentence for Garcia’s instant federal crime.

The government concedes Indiana’s statute includes sal-

via and concedes the federal definition of “felony drug of-

fense” does not. The government essentially concedes I.C. 35-

48-4-10 is overbroad under the categorical approach. But the

government argues I.C. 35-48-4-10 is divisible, so the modi-

fied categorical approach applies. When a statute sets out al-

ternative elements rather than merely alternative means, it is

divisible, and courts use the modified categorical approach to

determine which division formed the basis of the conviction.

Here, if the statute’s list of drugs is a list of alternative ele-

ments rather than alternative means, then we would apply the

modified categorical approach to determine which of the

listed drugs supported Garcia’s prior conviction. If that drug

were marijuana, then the prior conviction is a “felony drug

offense” enhancing the present sentence. If that drug were sal-

via, then the prior conviction is not a “felony drug offense”

and does not enhance the present sentence.

So the ultimate question is whether Indiana’s statute is di-

visible. Federal courts defer to state courts on the issue of

whether a state statute is divisible. Mathis, 136 S. Ct. at 2256

(“This threshold inquiry—elements or means?—is easy in this

case, as it will be in many others. Here, a state court decision

definitively answers the question … .”). A state supreme court

6 Nos. 18-1890 & 18-2261

decision on point generally controls. But reliance on a state

intermediate court decision is appropriate in the absence of a

decision from the State’s highest court or a compelling reason

to think the highest court would disagree with the intermedi-

ate decision. Mathis itself does not require a federal court to

look only to the decisions of the State’s highest court. Indeed,

we recently looked to an Indiana Court of Appeals decision

for the “most authoritative guidance” regarding the scope of

particular Indiana drug crimes for purposes of determining

whether that scope fell within the Armed Career Criminal

Act’s definition of a “serious drug offense.” United States v.

Williams, 931 F.3d 570, 576 (7th Cir. 2019) (discussing Hyche v.

State, 934 N.E.2d 1176, 1179 (Ind. Ct. App. 2010)).

Here, decisions by Indiana’s Supreme Court and Court of

Appeals show the statute is not divisible. See Duncan v. State,

412 N.E.2d 770, 775–76 (Ind. 1980); Everroad v. State, 570

N.E.2d 38, 54 (Ind. Ct. App. 1991), rev’d in part but summarily

aff’d in relevant part, 590 N.E.2d 567, 571 (Ind. 1992); Martin v.

State, 374 N.E.2d 543, 545 (Ind. Ct. App. 1978). The Indiana

Court of Appeals decision in Everroad is particularly instruc-

tive. The court applied Indiana Supreme Court precedent to

an older version of I.C. 35-48-4-10. Indiana charged defend-

ants with two counts under I.C. 35-48-4-10 based on a single

occurrence: one for marijuana, one for hashish. On appeal, de-

fendants argued they could only be convicted of one count

under this statute even though two drugs itemized in the stat-

ute were involved. The intermediate court applied Duncan

and concluded possessing marijuana and hashish is only one

violation of I.C. 35-48-4-10. Defendants could not be convicted

of separate counts for marijuana and hashish based on the

same occurrence.

Nos. 18-1890 & 18-2261 7

The intermediate decision in Everroad is currently the au-

thoritative resolution of this issue by an Indiana court. Indi-

ana’s Supreme Court has not directly addressed this issue, alt-

hough its decision in Duncan supported the intermediate de-

cision in Everroad,2 which is clear and unambiguous. Pos-

sessing marijuana and hashish is only one violation of I.C. 35-

48-4-10. Salvia stands on equal statutory footing.

Thus, the list of drugs in Indiana’s statute lists alternative

means of committing a single offense. So the modified cate-

gorical approach does not apply. “Marijuana, hash oil, hash-

ish, or salvia” are not alternative elements for alternative

crimes. Rather, they are alternative means of committing a

single crime. Therefore, under the categorical approach, if any

of these drugs in Indiana’s statute are not included in the list

of drugs in the federal definition of “felony drug offense,”

then the Indiana statute is broader than the federal definition.

And if the Indiana statute is broader, then a conviction under

it is not a “felony drug offense” for enhancement purposes,

regardless of which drug the defendant actually dealt. As al-

ready noted, inclusion of salvia in the Indiana statute ex-

cludes it from the federal definition of “felony drug offense.”

Thus, Garcia’s prior conviction under I.C. 35-48-4-10 is not a

“felony drug offense” and does not support the sentencing

enhancement here. Application of this enhancement was

plain error. But this does not mean Garcia is unaccountable.

He was held accountable by the state court for his prior

2 The Indiana Supreme Court summarily affirmed the relevant part of

the intermediate court’s decision in Everroad. We need not evaluate

whether this is more than perfect silence from the Indiana Supreme Court

because reliance on an intermediate decision is legitimate absent persua-

sive indicia Indiana’s highest court would reach a different conclusion.

8 Nos. 18-1890 & 18-2261

conviction. We remand to the district court for resentencing

without this prior conviction as an enhancer under 21 U.S.C.

§ 841(b)(1)(A) but we do not remove the prior conviction from

the 18 U.S.C. § 3553(a) analysis. See Portee v. United States, 941

F.3d 263, 273 (7th Cir. 2019).

II. PINEDA-HERNANDEZ

Pineda-Hernandez stood trial. He argues an interpreter

botched the interpretation of the trial testimony of a key gov-

ernment witness. He argues the district judge compounded

the problem by recalling the witness to testify again, the fol-

lowing day, with a different interpreter. He seeks remand for

a new trial. In the alternative, he also appeals the imposition

at sentencing of an upward adjustment based on his role.

A. TRIAL

1. Day One

Pineda-Hernandez spoke little English, so the judge ap-

pointed two federally certified interpreters to assist him dur-

ing trial: Claudia Rubio Samulowitz and Maria Conde-Bar-

wise. The judge introduced them to the prospective jurors as

“neutral parties serving the Court in providing an interpret-

ing service to the Defendant in this case.” (Tr. Voir Dire, DE

629, 9:13–14.) Day one, including voir dire, jury selection, and

evidence, proceeded without significant problems.

2. Day Two

Day two also passed without significant problems. The

judge asked Pineda-Hernandez if he could understand the in-

terpreters, and he said yes.

Nos. 18-1890 & 18-2261 9

3. Day Three: Barragan-Lopez testified

On the third morning of trial, the government called Mi-

guel Barragan-Lopez to testify against Pineda-Hernandez.

Barragan-Lopez was a co-defendant who pleaded guilty. Ac-

cording to Pineda-Hernandez, Barragan-Lopez was “heavily

involved in the alleged Code Red drug-distribution ring” and

was a star witness for the government (“critical” and “key”).

(Pineda-Hernandez’s Br., 8–9.)

Barragan-Lopez testified through Samuel Ramos, an inter-

preter hired by the government, not appointed by the court,

and not federally certified. Before Barragan-Lopez testified,

Pineda-Hernandez’s counsel agreed there were no issues with

Ramos’s qualifications and agreed to have him interpret. So

he did. The general process involved him listening to an at-

torney’s question in English, interpreting the question into

Spanish for Barragan-Lopez, listening to his Spanish re-

sponse, and interpreting the response into English. The court

did not record audio at trial. The court reporter did not cap-

ture any Spanish in the transcript of Barragan-Lopez’s testi-

mony (save “Si” a few times). So we have no record of all the

Spanish spoken by Ramos or Barragan-Lopez. Neither party

asked the court to record or transcribe the Spanish.

Barragan-Lopez testified as follows. He dealt drugs in In-

dianapolis in 2013, was convicted of a felony drug crime, was

deported, but soon returned to the United States because he

owed money to people in Mexico. In 2015 he was involved in

further drug activity that lead to the charges in this case. He

faced a minimum of 20 years in prison because of his prior

felony drug conviction. He decided to cooperate with the gov-

ernment in exchange for a chance to receive a lower sentence.

10 Nos. 18-1890 & 18-2261

Barragan-Lopez admitted that around May 2015, he en-

tered into an arrangement with Pineda-Hernandez (also

known as “Flaco”) and others involving meth distribution.

Barragan-Lopez testified about Pineda-Hernandez’s role:

Q What was Flaco’s role?

A What do you mean Flaco’s role?

Q In this business arrangement regarding

the distribution of methamphetamine, what did

Flaco do?

A He received it.

Q Okay. Received it from where?

A From Mexico.

Q How do you know that?

A Because he told me that.

Q Okay. What did Niko do? I am sorry,

what did Grenas do?

A Help him distribute it.

Q Okay. What did you do?

A Help Grenas and he to distribute it.

Q Now, when you talk about “he,” are you

referring to Flaco, the Defendant, Pineda-Her-

nandez?

A Yes.

(Trial Tr., DE 633, 393:6–21.)

Barragan-Lopez confirmed his testimony about Pineda-

Hernandez (“Flaco”) a bit later:

Nos. 18-1890 & 18-2261 11

Q All right. So you have told us about this

distribution system where Flaco had obtained

the methamphetamine. The methamphetamine

was distributed down through Grenas, to you,

to Big Mike, and College?

A Yes.

Q How much did you have to pay for a

pound of methamphetamine that was provided

to you by Grenas from Flaco?

A Eight, 8,000.

(Id. at 396:22–397:4.)

Barragan-Lopez testified about the color of the meth he re-

ceived from Pineda-Hernandez (“Flaco”):

Q Okay. As you sit here today, do you re-

call the color of the methamphetamine that you

received from Flaco?

A Yes.

Q What color was it?

A Pinky transparent.

Q Now, was some of the methampheta-

mine that you received actually white?

A Yes.

***

Q Mr. Barragan, I am going to show you

what has been introduced as Government’s Ex-

hibit 14 and see if that looks like the metham-

phetamine or the white methamphetamine that

12 Nos. 18-1890 & 18-2261

you would have received from Flaco through

Grenas?

A Yes.

Q Now, you have indicated that some of

the methamphetamine you received was, I be-

lieve, pinkish or red; is that what you testified

to?

A Yes.

***

Q And if we look at that photograph [Ex-

hibit 156] is that what some of that red or pink

methamphetamine looked like?

A Yes.

***

Q Once again, did that pinkish or red meth-

amphetamine that you received from Flaco

through Grenas, did it look like the substance

that we see here in Exhibit 158?

A Yes.

***

Q Did you learn how that reddish—or

pink-ish-colored methamphetamine got to be

that way as compared to being white, which we

see in Exhibit No. 14?

A Supposedly it was made up.

Q Made up of what?

A With Gatorade.

Nos. 18-1890 & 18-2261 13

Q How do you know that?

A Because Flaco told me.

Q Did Flaco tell you that he, himself, had

used the Gatorade to make the meth which

caused it to turn pinkish or red?

A Yes.

(Id. at 403:5–404:25.)

Shortly into cross-examination, Conde-Barwise ap-

proached for a bench conference and said Ramos misinter-

preted a number. The judge had defense counsel repeat the

question, thereby fixing the problem right away. A little later

Conde-Barwise again approached the bench and said Ramos

misinterpreted a drug’s name. The judge repeated the ques-

tion to the witness, again fixing the problem right away.

Defense counsel elicited clarity from Barragan-Lopez re-

garding Pineda-Hernandez’s role:

Q And your testimony today, under oath, is

that my client, who has been known in this case

as Flaco, was the head of that organization?

A Yes.

Q It was your testimony today, under oath,

that he was the source of the methampheta-

mines?

A Yes.

Q Is your testimony today that he colored

the drugs with Gatorade?

A Yes.

14 Nos. 18-1890 & 18-2261

Q Is your testimony today that he had a

source that was out of the country?

A Yes.

(Id. at 436:17–437:4.)

Defense counsel also elicited clarity regarding the meth:

Q So your testimony today is that you have

gotten red methamphetamine?

A Yes.

Q And large crystal methamphetamine?

A Yes.

(Id. at 445:2–6.)

At the end of Barragan-Lopez’s testimony, the judge asked

the jury if it had any questions for this witness. It did not.

According to Pineda-Hernandez, Barragan-Lopez was a

star government witness because he testified about the struc-

ture of the criminal enterprise, identified Pineda-Hernandez

as a central figure, and described tension between members

of the ring. Pineda-Hernandez argues Ramos’s interpretation

during this key testimony was ineffective. Outside the jury’s

presence, during the lunch recess after Barragan-Lopez fin-

ished testifying, the two court-appointed interpreters told the

attorneys and judge about errors in Ramos’s interpretations.

Samulowitz said most of the omissions were at the end of sen-

tences. She said there were many differences in meaning that

were not crucial, but they started to accumulate. She said,

“[N]ot all the sentences made sense at one point or another in

Spanish. When we noticed great differences in meaning, we

Nos. 18-1890 & 18-2261 15

felt the need to interfere … .” (Id. at 451:13–16.) Samulowitz

recommended a federally certified interpreter take over.

The judge quickly understood the interpretation was po-

tentially problematic. She asked if Samulowitz or her col-

league, Conde-Barwise, could take over interpreting. They

agreed. She asked the parties if they accepted. They did. Then

the judge asked counsel, “[D]o you want us to recall Mr. Bar-

ragan-Lopez to reexamine him?” (Id. at 452:25–453:1.) Before

receiving an answer, the judge asked Samulowitz for exam-

ples of misinterpretations. After explaining that she could not

give many details, Samulowitz gave only one example:

The question was, “When did the Defendant get

out of the car?” The translation should have,

should have been “as soon as the car stopped,”

and it was something like, “as much as he could

stand up.” Which, if you translate that into Eng-

lish it makes sense, but when you say it in Span-

ish, it doesn’t. That is the best example this in-

terpreter can give at this point, but there were a

lot of omissions, Your Honor, towards the end

of every, of every question, of every answer

back into English or questions into Spanish.

There was—it was obvious that the ability to re-

tain the information for the whole question was

not there because every question kept being in-

terrupted to “chunk it,” as we say.

(Id. at 454:22–455:9.) The judge pressed Samulowitz for more

examples, but she had none. She deferred to her colleague,

Conde-Barwise, who gave two examples.

16 Nos. 18-1890 & 18-2261

One, Conde-Barwise noted the prosecutor asked the wit-

ness about drugs he received from Pineda-Hernandez through

Niko, but Ramos interpreted the question into Spanish as re-

ceived from Pineda-Hernandez or Niko. Conde-Barwise said

this was just one example of numerous similar errors.

Two, she noted interpretation problems regarding testi-

mony about distribution: “When [the prosecutor] was asking

him about how the distribution process went or how they had

different levels into distribution, distribution channel, I noted

that he omitted parts and that he was not clear in the end how

the distribution was made.” (Id. at 457:10–15.)

Without waiting for the parties to answer her question

about whether to recall the witness (and without either party

asking to recall the witness) the judge sua sponte decided to

recall him: “I think it is important that we recall him. I am just

making that decision. So we will recall him.” (Id. at 457:16–

18.) As the discussion continued, Conde-Barwise emphasized

that Ramos omitted two to three words at the end of every

question. The prosecutor asked the judge whether she would

strike Barragan-Lopez’s first day of testimony.3 The judge

said she was not striking it. She said she would “tell the jury

the funny thing called the truth, that there was an issue about

the translation, and so the court-appointed interpreters are

going to interpret his testimony.” (Id. at 461:15–18.)

The judge asked defense counsel about bringing the wit-

ness back the next day. Defense counsel said that was accepta-

ble. Discussion ensued about the process for interpreting the

witness the next day. The prosecutor invited Pineda-

3

The prosecutor did not ask the judge to strike the testimony, but

merely asked whether the judge would strike the testimony.

Nos. 18-1890 & 18-2261 17

Hernandez to waive any objections he might have to any in-

terpretation errors. Pineda-Hernandez declined to waive. His

attorney said, “He does not waive any translation errors. He

would like for the witness to come back tomorrow.” (Id. at

471:5–6.)

Pineda-Hernandez did not object to recalling the witness

and having one of the court-appointed interpreters interpret.

The judge asked, “I just want to confirm for the record that

you have no objection to the process the Court has outlined

where we will recall the witness and have one of the Court

interpreters serve as the interpreter?” And defense counsel

said, “No objection, Your Honor.” (Id. at 505:9–13.)

4. Day Four: déjà vu

Day four opened with the prosecutor raising three issues

outside the presence of the jury.

One, the prosecutor argued the examples given by the two

court-appointed interpreters of purported erroneous inter-

pretations were sparse and immaterial. And one of the exam-

ples involving a dispute over whether the question concerned

marijuana on one hand or methamphetamine and heroin on

the other was not a misinterpretation but merely an instance

of people hearing different things, the prosecutor argued.

Two, the prosecutor argued “the unspecified allegations of

widespread translation errors” left only two options: either

recall Barragan-Lopez to re-testify with a new interpreter or

Pineda-Hernandez could waive any interpretation errors that

might have occurred and the case would stand on the wit-

ness’s testimony as elicited on day three.

Three, the prosecutor stated his understanding that the

judge was not making any finding about whether there were

18 Nos. 18-1890 & 18-2261

interpretation errors. The prosecutor noted Ramos had not

commented on the allegations of errors, had been unable to

hear the interpretations made by the court-appointed inter-

preters to Pineda-Hernandez during trial, and might defend

his interpretations as exactly right.

Defense counsel stated Pineda-Hernandez was not waiv-

ing any rights. The judge confirmed she was not making any

finding that Ramos’s interpretations were inaccurate. The

judge noted that defense counsel had agreed to Ramos’s qual-

ifications. The judge explained her decision to recall Bar-

ragan-Lopez. She told Pineda-Hernandez that if he agreed

that Barragan-Lopez could re-testify, then the jury would

hear his testimony twice, and Pineda-Hernandez would

waive any error in the fact that the witness testified twice. The

judge asked Pineda-Hernandez if he wanted to proceed with

the witness’s testimony as elicited the day before or if he

wanted the witness to be recalled. Pineda-Hernandez re-

sponded through Conde-Barwise: “I have made the decision

that I would like to hear the testimony … of this witness … .

And I would not like to waive any right to any appeal. And

so I would like for that witness to testify today.” (Trial Tr., DE

634, 517:2–6.) The judge replied that by making that choice,

Pineda-Hernandez was waiving the right to complain on ap-

peal that the witness testified twice. But Pineda-Hernandez

persistently insisted he was not waiving anything:

What I am saying, it was not my problem. It was

not an issue for my attorney. I think this was an

issue that came up that no one was planning for

it to happen, and let me say this again, I do not

want to waive my right. But let me say again—

let me say it again, you have the last word. Do

Nos. 18-1890 & 18-2261 19

as you deem fit. I would like for him to testify

again.

(Id. at 517:16–21.) The judge did not press further for a waiver.

She directed another interpreter, Elizabeth Sanchez, to remain

with Pineda-Hernandez and interpret for him so Samulowtiz

and Conde-Barwise could work as a team to provide interpre-

tation services for the witness.

The jury entered. The judge instructed it that an issue had

been raised about the accuracy of Barragan-Lopez’s testi-

mony the prior day, that the judge could not determine that

issue because she was not fluent in Spanish, and that the par-

ties agreed Barragan-Lopez will testify again with a different

interpreter. The judge did not strike the witness’s prior testi-

mony. Neither party asked her to. Nor did Pineda-Hernandez

seek a mistrial. Referencing the movie Groundhog Day, the

prosecutor began the repeat direct examination of the wit-

ness. Barragan-Lopez testified again about his prior felony

drug crime, deportation, illegal re-entry, further drug activity

leading to the charges in this case, and decision to cooperate

with the government. Again he admitted that around May

2015, he entered into an arrangement with Pineda-Hernandez

and others involving meth distribution. The prosecutor asked

Barragan-Lopez about what Pineda-Hernandez did:

Q And in that arrangement, what did Flaco

do?

A He was in charge.

Q Okay. What else did he do?

A He would call, for instance, he would call

me so I could make arrangements with Grenas.

20 Nos. 18-1890 & 18-2261

Q To do what?

A Transactions with ice.

Q And is “ice” another name for metham-

phetamine?

A Yes.

Q Where did the ice or the methampheta-

mine come from?

A From Mexico.

Q And who obtained it from Mexico?

A In Flaco or in Grenas.

Q What was your role in the arrangement?

A Helping them sell it.

(Id. at 541:15–542:4.)

The prosecutor asked about financing:

Q [Y]ou told us that there was metham-

phetamine or ice that you were receiving that

came from Grenas and came from Flaco. How

much did you have to pay for that ice?

A 8,000.

Q Okay. And $8,000 for what quantity?

A Per pound.

(Id. at 544:18–24.)

The prosecutor asked about the distribution chain:

Q [W]as that methamphetamine that had

been imported from Mexico?

Nos. 18-1890 & 18-2261 21

A Yes.

Q And who imported the methampheta-

mine from Mexico?

A I don’t know.

Q Okay. And when it was—who delivered

the methamphetamine to you?

A Grenas.

Q And did Grenas tell you from where he

had obtained the methamphetamine that he was

delivering to you?

A From Flaco.

Q Okay. Did Flaco ever deliver metham-

phetamine to you?

A He would send it to me with Grenas.

(Id. at 546:9–21.)

The prosecutor asked about the color of the meth:

Q And how many total pounds of metham-

phetamine do you believe you received between

May and August of 2015?

A Between 7 and 8.

Q Okay. Now, as you sit here today, do you

recall the color of the methamphetamine that

you received to distribute to your customers?

A Yes.

Q What color was it?

22 Nos. 18-1890 & 18-2261

A It was pinkish, between pinkish and

red—and red, and the other one was translu-

cent.

***

Q If we take a look at the photograph which

is Government’s Exhibit No. 156, is this—does

this depict, or does this show what some of that

red methamphetamine looked like?

A Yes.

Q Okay. And if we go to Exhibit No. 158,

please, and does some of that pinkish or red

methamphetamine that you received look like

the substance which we see here in Govern-

ment’s Exhibit 157?

A Yes.

Q All right. Now, did you come to learn

how this pink or red methamphetamine got to

be pink or red as compared to the translucent

color which we see in Government’s Exhibit 14?

A Yes.

Q Okay. And how was that?

A They would do it with Gatorade.

Q Okay. Who would do it with Gatorades?

A Flaco.

Q How do you know that?

A Because he told me so.

(Id. at 551:16–553:17.)

Nos. 18-1890 & 18-2261 23

The prosecutor elicited further testimony regarding Bar-

ragan-Lopez’s methamphetamine sources:

Q Now, so far we have been talking about

this conflict with the methamphetamine that

you believed had come from Grenas but had re-

ally come from Flaco. Now, at this same time,

were you receiving some methamphetamine

separately from Grenas?

A Yes.

(Id. at 574:15–20.)

On cross-examination, defense counsel again elicited clar-

ity from Barragan-Lopez about Pineda-Hernandez’s role:

Q Your testimony, under oath, is that my

client was the source for the methampheta-

mines originally; is that correct?

A Yes.

Q Is your testimony that he colored it with

Gatorade?

A Yes.

Q Is your testimony today that Grenas, or

he is also known in this case as Niko, delivered

all the methamphetamines to you?

A Yes.

(Id. at 588:17–25.)

At the conclusion of Barragan-Lopez’s testimony on day

four, the judge again asked the jury if it had any questions for

him. Again, it did not.

24 Nos. 18-1890 & 18-2261

At the end of day four, the judge and attorneys discussed

jury instructions. The judge asked if the instructions should

say anything special about Barragan-Lopez’s testimony. The

judge leaned against it. She did not notice any substantive dif-

ferences between the two rounds: “I did not discern any dif-

ference, maybe some nuanced differences but nothing sub-

stantive. So I would prefer to maybe not even draw any atten-

tion to it … .” (Id. at 680:2–6.) Both attorneys agreed there was

no need for a special instruction on point. Neither attorney

ever asked to strike Barragan-Lopez’s day-three testimony.

5. Day Five

But on day five, the prosecutor proposed a jury instruction

noting Barragan-Lopez testified twice because an issue was

raised about the accuracy of the interpretation of his first tes-

timony, instructing the jury not to give any extra weight to his

testimony because he testified twice, and telling the jury to

evaluate his testimony in accordance with the instructions.

Defense counsel agreed to include that instruction, so the

judge gave it to the jury after closing arguments. The jury de-

liberated and returned a verdict of guilty on both counts.

6. Analysis

Pineda-Hernandez raises three issues on appeal regarding

the alleged interpretation debacle.

One, did the inaccurate interpretation of a key govern-

ment witness violate Pineda-Hernandez’s due process rights?

Two, did the district judge abuse her discretion by re-

calling this witness for a second day of testimony, especially

when she did not strike the first, gravely misinterpreted day

of testimony?

Nos. 18-1890 & 18-2261 25

Three, did the judge abuse her discretion by failing to use

resources and procedures available under the Court Inter-

preters Act?

i. lost in translation

Pineda-Hernandez complains of widespread interpreta-

tion inaccuracies during Barragan-Lopez’s testimony on day

three. But Pineda-Hernandez only points to three examples.

First: the alleged misinterpretation of the prosecution’s

English question about drugs received from Pineda-Hernan-

dez through Niko (also known as “Grenas”) into Spanish to

the witness as received from Pineda-Hernandez or Niko.

Second: the alleged interpretation omissions and lack of

clarity regarding distribution.

Third: the alleged color discrepancies.

The government argues Pineda-Hernandez waived the

misinterpretation claims by endorsing the court’s remedy of

recalling the witness. We disagree. Pineda-Hernandez plainly

and repeatedly said he was not waiving anything. In the al-

ternative, the government urges forfeiture and plain-error re-

view of the misinterpretation claims because Pineda-Hernan-

dez did not object below. Again, we disagree. Counsel for

both parties told the judge after the lunch recess on day three

that the court-appointed interpreters raised interpretation er-

rors. Defense counsel told the judge, “they said it was

throughout and it was so great that they didn’t want to con-

tinue but they wanted to bring it to our attention … .” (Trial

Tr., DE 633, 450:22–24.) This amounts to an objection.4 In the

4See Stone v. Morris, 546 F.2d 730, 736 (7th Cir. 1976) (“The purpose of

Rule 46 is to inform the trial judge of possible errors so that he may have

26 Nos. 18-1890 & 18-2261

absence of waiver or forfeiture, the government concedes we

review due process challenges to trial interpretations de novo.

A defendant is denied due process when “the accuracy

and scope of a translation at a hearing or trial is subject to

grave doubt … .” United States v. Cirrincione, 780 F.2d 620, 634

(7th Cir. 1985). The “basic constitutional inquiry” when deter-

mining the competency of interpretation is “whether any in-

adequacy in the interpretation made the trial fundamentally

unfair.” United States v. Leiva, 821 F.3d 808, 820 (7th Cir. 2016)

(quoting United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir.

1990)). Mere interpretation “hiccups” do not create grave

doubt. Leiva, 821 F.3d at 820. An interpretation need not be

verbatim to be constitutionally sound if it “reasonably con-

veys the intent or the idea of the thought spoken.” United

States v. Gonzalez, 319 F.3d 291, 296 (7th Cir. 2003) (quoting

United States v. Zambrana, 841 F.2d 1320, 1337 (7th Cir. 1988)).

Pineda-Hernandez argues the grave misinterpretation of

the testimony rose to the level of structural error. Structural

errors “deprive defendants of ‘basic protections’ without

which ‘a criminal trial cannot reliably serve its function as a

vehicle for determination of guilt or innocence … .’” Neder v.

United States, 527 U.S. 1, 8–9 (1999) (quoting Rose v. Clark, 478

U.S. 570, 577–78 (1986)). Structural errors require automatic

reversal, and are immune to harmless-error review.

the opportunity to consider his rulings and to correct them if necessary.

Normally that purpose can be adequately served only by the making of

an objection on the record, but if the court and the other litigants know

what action a party desires the court to take, the purpose of the rule is

served. In such circumstances a formal objection is not required, and the

failure of the court to take the desired action may be asserted as error on

appeal.” (internal citation omitted).)

Nos. 18-1890 & 18-2261 27

As for the claim of widespread error throughout the inter-

pretations, we do not see evidence of it. We compared Bar-

ragan-Lopez’s testimony on day three to his testimony on day

four. The questions and answers on the two days did not ex-

actly mirror each other, but that seems to be a function of the

slightly different approaches. A comparison of the two days

does not support the claim there was significant widespread

error on day three. Pineda-Hernandez has never claimed any

interpretation problems regarding Barragan-Lopez’s testi-

mony on day four. Using day four as a referential Rosetta

Stone, we do not see indicia of significant widespread inter-

pretation errors on day three. Pineda-Hernandez has the bur-

den to support his claim of widespread error, but he has not

done so.

As for the particular instances of alleged misinterpreta-

tions, they did not violate Pineda-Hernandez’s right to due

process. Pineda-Hernandez only alleges three specific inter-

pretation errors: through versus or, testimony regarding distri-

bution, and testimony regarding color.

First, Conde-Barwise said Ramos interpreted the prosecu-

tor’s English question (“a question,” “the question”) about

drugs “that you received from Flaco through Grenas” into

Spanish for the witness as “that you received from Flaco or

Grenas.” (Trial Tr., DE 633, 457:1–6, emphasis added.) Conde-

Barwise did not identify this question with more specificity.

She only pointed to this happening once. But the transcript

shows the prosecutor asked the witness twice on day three

about meth he “received from Flaco through Grenas.” The

prosecutor showed an exhibit and asked if it looked like the

white meth “that you would have received from Flaco

through Grenas?” The witness said, “Yes.” (Id. at 403:17–21.)

28 Nos. 18-1890 & 18-2261

Then the prosecutor showed an exhibit depicting more meth

and asked “did that pinkish or red methamphetamine that

you received from Flaco through Grenas, did it look like the

substance that we see here in Exhibit 158?” Again, the witness

said, “Yes.” (Id. at 404:8–12.)

Pineda-Hernandez argues this allegedly grave misinter-

pretation is a constitutional problem because it concerns

“how the Code Red conspiracy procured drugs for sale—the

very thrust of the case … .” (Pineda-Hernandez’s Br., 25.) He

also argues the witness’s misinterpreted testimony about

Pineda-Hernandez’s role in the conspiracy was inconsistent

with the witness’s testimony on recall the next day. (Id. at 30.)

But there is no constitutional problem here. On day three,

as noted above, the prosecutor elicited clarity from Barragan-

Lopez regarding the procurement and distribution process:

“So you have told us about this distribution system where

Flaco had obtained the methamphetamine. The methamphet-

amine was distributed down through Grenas, to you, to Big

Mike, and College?” “Yes.” (Trial Tr., DE 633, 396:22–397:1.)

And on day four’s direct examination, as noted above, Bar-

ragan-Lopez confirmed that Grenas delivered the meth to

Barragan-Lopez, that Grenas said he got it from Pineda-Her-

nandez, and that Pineda-Hernandez would send the meth to

Barragan-Lopez with Grenas. (Trial Tr., DE 634, 546:14–21.)

Moreover, as shown above, defense counsel also elicited

clarity about Pineda-Hernandez’s role while cross-examining

Barragan-Lopez on day three. The witness confirmed it was

his testimony Pineda-Hernandez “was the head of that organ-

ization,” “was the source of the methamphetamines,” “col-

ored the drugs with Gatorade,” and “had a source that was

out of the country.” (Trial Tr., DE 633, 436:17–437:4.) Pineda-

Nos. 18-1890 & 18-2261 29

Hernandez does not point to any problems with the interpre-

tations during this exchange. And defense counsel elicited

similar clarity from this witness on day four: he confirmed

Pineda-Hernandez “was the source for the methampheta-

mines originally” and “he colored it with Gatorade.” The wit-

ness confirmed Grenas “delivered all the methampheta-

mines” to the witness. (Trial Tr., DE 634, 588:17–25.) So even

if Ramos misinterpreted the English “through” into the Span-

ish for “or” twice—which is more than Conde-Barwise

claims—the error was corrected by numerous other questions

and answers which clarified that Pineda-Hernandez was the

source of the methamphetamine.

Second, Conde-Barwise raised a problem she called “more

generic.” She said when the prosecutor asked about the dis-

tribution process, Ramos omitted parts and it was not clear in

the end how distribution occurred. But, again, a comparison

of the testimony over two days does not reveal significant in-

terpretation errors in this regard. And both attorneys, on both

days, elicited ample clarification.

Third, Pineda-Hernandez argues Barragan-Lopez’s testi-

mony about the meth color changed when his interpreters

did. No interpreter raised a problem on the record regarding

the color testimony. It seems Pineda-Hernandez’s only basis

for claiming a problem regarding the color testimony is his

claim that the testimony changed from day three to day four.

But it did not change significantly.

On day three the witness divided the meth into two cate-

gories: colored and white. Specifically, as noted above, he tes-

tified some meth was “[p]inky transparent” (Ramos’s inter-

pretation of answer into English), “pinkish or red” (prosecu-

tor’s English question, eliciting affirmation), “red or pink”

30 Nos. 18-1890 & 18-2261

(ditto), “reddish—or pink-ish-colored” (ditto), and “red” (de-

fense counsel’s English question, eliciting affirmation). And

he testified some meth was “white” (prosecutor’s English

questions, eliciting affirmation).

On day four the witness divided the meth into the same

two categories. He testified some meth “was pinkish, between

pinkish and red—and red” (Conde-Barwise’s interpretation

of answer into English), “red” (prosecutor’s English question,

eliciting affirmation), “pinkish or red” (ditto), and “pink or

red” (ditto). And he said some meth was “translucent”

(Conde-Barwise’s interpretation of answer into English).

We fail to see any significant difference between day

three’s “[p]inky transparent,” “pinkish or red,” “red or pink,”

“reddish—or pink-ish-colored,” and “red” versus day four’s

“pinkish, between pinkish and red—and red,” “red,” “pink-

ish or red,” and “pink or red.” Each day’s palette carried the

same nuances in hue, typical of Picasso’s Rose Period. There

is no reason to think Ramos made any interpretation errors in

this regard. The other interpreters did not even claim he did.

Indeed, the clearest, boldest statement of “red” during Bar-

ragan-Lopez’s testimony on day three—remember, the con-

cern is about whether Pineda-Hernandez fits into the “Code

Red” conspiracy—came during defense counsel’s cross-ex-

amination of the witness. Moreover, if there were any ambi-

guity about Barragan-Lopez’s testimony about meth color, or

any indication his testimony about color on day three did not

match his testimony on day four because of misinterpreta-

tions, defense counsel had a chance to clarify the issues on

cross-examination of the witness on day four. But she asked

no questions about meth color during this opportunity, other

than to confirm the witness’s testimony that Pineda-

Nos. 18-1890 & 18-2261 31

Hernandez colored the meth with Gatorade. This was proba-

bly because there was no significant ambiguity or misinter-

pretation regarding the witness’s testimony about meth color.

In sum, no widespread or particular interpretation errors

deprived Pineda-Hernandez of due process.

ii. total recall

Pineda-Hernandez argues the judge abused her discretion

by recalling Barragan-Lopez for a second day of testimony,

especially when she did not strike his first, gravely misinter-

preted day of testimony. We already determined any errors in

interpretation during the first day of testimony were harm-

less. But when the court-appointed interpreters raised their

concerns on day three, the judge, not fluent in Spanish, could

not determine the extent of any problem. So she decided to

recall the witness. This helped ensure the jury would not rely

on tainted testimony. And it revealed the witness’s testimony

on day three was not tainted, or at least not substantially or

significantly tainted. As the judge recognized, the testimony

on both days was essentially the same: “I did not discern any

difference, maybe some nuanced differences but nothing sub-

stantive.” (Trial Tr., DE 634 at 680:2–4.)

Pineda-Hernandez argues recalling the witness gave the

government two bites at the apple, and the first session was

practice. Pineda-Hernandez argues the witness’s testimony

differed between the two days. In particular, when on day

three the government asked “what did Flaco do?” the witness

responded “He received it,” referring to meth. But when the

government asked the same question the next day, the wit-

ness responded “He was in charge.” But there was other tes-

timony on day three that Pineda-Hernandez was in charge.

32 Nos. 18-1890 & 18-2261

On day three’s cross-examination, as noted above, Barragan-

Lopez testified Pineda-Hernandez “was the head of that or-

ganization” and “was the source of the methamphetamines”

(defense counsel’s English words, eliciting affirmation).

As another example of a difference between the two days,

Pineda-Hernandez points to the testimony regarding meth

color. He argues the testimony on day four more closely

tracked the government’s theory and theme of the “Code

Red” prosecution than did the testimony on day three. But we

already explained there was no significant variation in the

color testimony between the two days.

The mere hearing of the witness twice was not problematic

because the judge instructed the jury not to give extra weight

to the twice-told tale. Pineda-Hernandez agreed to this in-

struction. We presume the jury followed it. United States v.

Marchan, 935 F.3d 540, 548 (7th Cir. 2019). Pineda-Hernandez

has not rebutted this presumption. We also think it significant

the jury never asked about Barragan-Lopez’s testimony. It did

not ask any questions of the witness after his testimony on

day three or after his testimony on day four. Nor did it ask the

court any questions about his testimony as it deliberated.

The judge did not abuse her discretion or otherwise err in

recalling the witness.

iii. Court Interpreters Act

Pineda-Hernandez argues the judge abused her discretion

by failing to use resources and procedures available under the

Court Interpreters Act. In particular, Pineda-Hernandez

faults the judge for allowing a non-federally certified inter-

preter for Barragan-Lopez. But the problem for Pineda-Her-

nandez here is he agreed to have the non-federally certified

Nos. 18-1890 & 18-2261 33

interpreter on day three, and he accepted the interpreter’s

qualifications. The judge did not abuse her discretion by al-

lowing the non-federally certified interpreter, accepted by

Pineda-Hernandez, to interpret on day three. Besides, the

judge cured any error here by recalling the witness. Pineda-

Hernandez also faults the judge for not recording audio of the

trial. But he never asked her to record it. And she had no rea-

son to think a recording of day three was necessary. She did

not abuse her discretion by not recording the trial.5

7. Conclusion

The alleged interpretation debacle involves no reversible

error. Pineda-Hernandez’s claims of grave, widespread mis-

interpretations are unsubstantiated. The few particulars he

points to are insignificant at most. The recall was not ideal,

but it made the best of a potentially difficult situation.

B. LEADERSHIP ENHANCEMENT AT SENTENCING

The guidelines provide a four-level upward adjustment

for a defendant who “was an organizer or leader of a criminal

activity that involved five or more participants or was other-

wise extensive.” U.S.S.G. § 3B1.1(a). The guidelines also pro-

vide a 2-level upward adjustment for a defendant who “was

an organizer, leader, manager, or supervisor in any criminal

activity other than described in (a) or (b).” Id. § 3B1.1(c).

At sentencing, the judge applied the § 3B1.1(a) adjustment

to count I and the § 3B1.1(c) adjustment to count II. The result

5 Neither party seems to have asked the court reporter if she recorded

any audio during the trial, or if the computer-aided transcription process

documented any Spanish. Certainly neither party provides us with any

evidence of this nature. We decline to pursue these leads on our own.

34 Nos. 18-1890 & 18-2261

for each count was an adjusted offense level of 42. Without the

enhancements, the guidelines ranges would have been 235 to

293 months for count I and 292 to 365 months for count II (sub-

ject to a statutory maximum of 20 years for count II). But with

the enhancements, the guidelines range for each count was

360 months to life (subject to the statutory maximum for count

II). The judge imposed a below-guidelines sentence of 300

months on count I concurrent with 240 months (the statutory

maximum) on count II.

Pineda-Hernandez challenges the application of the lead-

ership enhancement.6 We review fact findings tied to a guide-

lines enhancement for clear error. United States v. Collins, 877

F.3d 362, 363 (7th Cir. 2017). “Whether a defendant exercised

a managerial role in the charged offense is a factual determi-

nation that we review under the clearly erroneous standard.”

United States v. Hall, 101 F.3d 1174, 1176 (7th Cir. 1996). A fact

finding is clearly erroneous only if, after reviewing the

6 Pineda-Hernandez certainly challenges the leadership enhancement

for count I. It was not clear from his initial appellate brief whether he also

challenged the leadership enhancement for count II. Sometimes he re-

ferred to “enhancements” in the plural, but sometimes to “enhancement”

in the singular. He did at least specifically mention the enhancement for

count II, but he did not seem to make specific arguments about it. The

government responded that it appeared Pineda-Hernandez was not chal-

lenging the leadership enhancement regarding count II. And the govern-

ment argues that even without the leadership enhancement for count I

there was no prejudice to Pineda-Hernandez because the offense level

would be 42 anyway because count II reached that level and Pineda-Her-

nandez did not challenge it. In reply, Pineda-Hernandez does not explic-

itly say he is also challenging the leadership enhancement for count II, he

does not dispel the government’s suggestion that he is not challenging it,

and he does not address the 42-anyway argument. But either way, he

would still lose.

Nos. 18-1890 & 18-2261 35

evidence presented below, we are left with the definite and

firm conviction a mistake has been made. Id. at 1177. Pineda-

Hernandez concedes clear-error review applies.

An organizer or leader “exercised some degree of control

over others involved in the commission of the offense” or was

“responsible for organizing others for the purpose of carrying

out the crime.” United States v. Wasz, 450 F.3d 720, 730 (7th Cir.

2006) (quoting with modifications United States v. Carson, 9

F.3d 576, 585 (7th Cir. 1993)). Crimes might involve multiple

organizers and leaders. And a defendant might qualify for the

enhancement even if he does not exercise complete dominion

over every member of the enterprise at all times. See United

States v. Mustread, 42 F.3d 1097, 1103 (7th Cir. 1994) (“Thus, at

a minimum, a defendant must have had some real and direct

influence, aimed at furthering the criminal activity, upon one

other identified participant.”); United States v. Brown, 944 F.2d

1377, 1385 (7th Cir. 1991) (“Section 3B1.1 requires the exercise

of some authority in the organization, the exertion of some

degree of control, influence, or leadership.”). A defendant

might qualify for the enhancement even if he did not pull all

the strings all the time. See Mustread, 42 F.3d at 1104 (Others

need not “have played marionette to the defendant’s puppet-

eer. For these purposes, to control another the defendant may

simply have organized or in some way directed him.”).

Pineda-Hernandez makes colorable arguments he was not

the leader or organizer. But these arguments do not overcome

the bulk of the evidence showing he exercised some signifi-

cant control and was responsible for some significant organi-

zation of others. We are not left with anything close to a defi-

nite and firm conviction a mistake has been made.

36 Nos. 18-1890 & 18-2261

III. CONCLUSION

Garcia’s prior conviction cannot enhance the mandatory

minimum for his sentence. We VACATE Garcia’s sentence

and REMAND for resentencing.

Regarding Pineda-Hernandez, we AFFIRM.