United States v. Madrigal ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0381n.06
Filed: May 30, 2006
No. 05-5340 / 5348
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
ON APPEAL FROM THE
Plaintiff-Appellee, UNITED STATES DISTRICT
COURT FOR THE
v. EASTERN DISTRICT OF
KENTUCKY
JOSE GONZALES
and VICTORIO MADRIGAL, OPINION
Defendants-Appellants.
BEFORE: SILER and ROGERS, Circuit Judges; JORDAN, Senior District Judge.*
LEON JORDAN, District Judge. Codefendants Jose Gonzales and Victorio
Madrigal appeal from their cocaine possession, distribution, and conspiracy convictions.
Gonzales argues that the district court erred by not, sua sponte, requiring an audio recording
of his Spanish-speaking trial interpreter. Madrigal contends that the district court erred in
denying his motion for judgment of acquittal. For the reasons that follow, appellants’
convictions are affirmed.
*
The Honorable R. Leon Jordan, Senior United States District Judge for the Eastern District
of Tennessee, sitting by designation.
United States v. Gonzales, 05-5340
United States v. Madrigal, 05-5348
I.
On October 7, 2004, a federal grand jury returned a thirteen-count superseding
indictment against Gonzales, Madrigal, Filadelfo Vargas, Carlos Ortega, and Raul Alfaro.
Count one of the indictment charged the present appellants with conspiring to distribute and
to possess with the intent to distribute 500 grams or more of cocaine between January 12 and
June 7, 2004, in violation of 21 U.S.C. § 846; counts five and six (Gonzales) and count eight
(Madrigal) charged appellants with distributing cocaine in violation of 21 U.S.C. § 841(a)(1);
and count eleven charged appellants with possessing with the intent to distribute 500 grams
or more of cocaine on June 7, 2004, in violation of 21 U.S.C. § 841(a)(1).
Vargas, Ortega, and Alfaro subsequently entered guilty pleas. Gonzales and
Madrigal went to trial and were convicted on all counts. A Spanish-speaking interpreter was
utilized at trial. Gonzales did not move for a recording of the interpreter, although he would
have been permitted by the Court Interpreters Act to so move.
II.
The instant prosecutions followed a six-month series of undercover cocaine
purchases at A’s De Oro Bar (also called the Bradshaw Street Bar) in Shelbyville, Kentucky.
A confidential informant purchased cocaine from Gonzales on February 23, 2004. On
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United States v. Madrigal, 05-5348
February 28, 2004, the informant purchased additional cocaine from Vargas, who then
“signaled” for Gonzales to retrieve the drugs from behind the bar.
On March 8, 2004, the informant purchased two ounces of cocaine, packaged
in clear sandwich bags, from Madrigal, who counted the purchase money and stuck it in his
pocket. This transaction began with the informant asking Madrigal “if he had some
merchandise for me,” to which Madrigal responded in the affirmative. The informant made
a purchase from Vargas the previous day. Madrigal’s car was in the A’s De Oro parking lot
at the time.
The final buy took place on June 7, 2004. The informant and an undercover
officer arranged to purchase 1.5 kilos of cocaine from Vargas. Vargas again “signaled,” or
gestured with his hand, for Gonzales and Madrigal to retrieve the drugs. The appellants then
left A’s De Oro together in a pickup truck and returned with the cocaine in a detergent box.
Gonzales was the driver. After appellants returned with the drugs, Madrigal slowly walked
away from the truck and was not seen actually touching the detergent box.
III.
Gonzales argues that the district court erred by not, sua sponte, requiring a
recording of his Spanish-speaking interpreter at trial. Because of this alleged error, Gonzales
contends that now “a post-trial review of the entire record cannot be made to check for
potential errors, thus violating the Appellant’s right to a fair trial and due process.” Going
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one step further, Gonzales’s counsel at oral argument stated that a recording should always
be required as a matter of public policy.
According to Gonzales, we must review his appeal de novo. He is incorrect.
Because Gonzales did not move for a recording, and because he did not object to the absence
of a recording, this court reviews for plain error. See United States v. Camejo, 333 F.3d 669,
672 (6th Cir. 2003); United States v. Markarian, 967 F.2d 1098, 1104 (6th Cir. 1992). “The
plain error doctrine mandates reversal only in exceptional circumstances and only where the
error is so plain that the trial judge and prosecutor were derelict in countenancing it.” United
States v. Slone, 833 F.2d 595, 598 (6th Cir. 1987) (citations and quotations omitted).
The Court Interpreters Act provides in material part that
[u]pon the motion of a party, the presiding judicial officer shall determine
whether to require the electronic sound recording of a judicial proceeding in
which an interpreter is used under this section. In making this determination,
the presiding judicial officer shall consider, among other things, the
qualifications of the interpreter and prior experience in interpretation of court
proceedings[,] whether the language to be interpreted is not one of the
languages for which the Director [of the Administrative Office of the United
States Courts] has certified interpreters, and the complexity or length of the
proceeding.
28 U.S.C. § 1827(d)(2) (emphasis added).
Trial courts are allowed broad discretion in interpreter-related decisions. See
Markarian, 967 F.2d at 1104. None of the § 1827(d)(2) considerations (qualification,
certification, and experience of the interpreter, or the complexity and length of trial) appear
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United States v. Madrigal, 05-5348
relevant in this case. Gonzales himself concedes: that he “cannot raise any instances where
there were problems that harmed the Appellant”; that “the interpreters appeared to be
competent”; and that there is “an assumption that no mistakes were made, because none
seemed apparent.” Again, Gonzales neither requested a recording of the interpreter nor
objected to the lack thereof.
Gonzales’s position may be to some extent alluring from a public policy
standpoint. Legally, however, the position is without merit. Section 1827(d)(2) is written
in discretionary, not mandatory, terms. Gonzales has not even suggested a problem with the
quality or effectiveness of his interpreter, or any other consideration that should have caused
the district court to exercise its broad discretion to order a recording. The belated argument
that mistakes occur and “could have been made” in this case is simply not enough to
demonstrate error, plain or otherwise.
IV.
At the close of the government’s case, appellant Madrigal moved for a
judgment of acquittal pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure.
The motion was denied. Madrigal now challenges the denial of his motion only as it pertains
to counts one (conspiracy to possess and distribute at least 500 grams of cocaine) and eleven
(possession with intent to distribute at least 500 grams of cocaine).
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United States v. Madrigal, 05-5348
An appellant claiming insufficiency of the evidence “bears a heavy burden.”
United States v. Maliszewski, 161 F.3d 992, 1005 (6th Cir. 1998). This panel reviews de
novo the denial of a Rule 29 motion, determining
“whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The Jackson standard requires
us to view both circumstantial and direct evidence in a light most favorable to
the prosecution. United States v. Hofstatter, 8 F.3d 316, 324 (6th Cir. 1993)
. . . . “Circumstantial evidence alone, if substantial and competent, may
support a verdict and need not remove every reasonable hypothesis except that
of guilt.” [United States v.] Talley, 194 F.3d at 765 (quoting United States v.
Keeton, 101 F.3d 48, 52 (6th Cir. 1996)).
United States v. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002) (emphasis in original). A
reviewing court does not weigh evidence, assess witness credibility, or substitute its
judgment for that of the jury. United States v. Wright, 16 F.3d 1429, 1440 (6th Cir. 1994).
The district court explained its denial of Madrigal’s motion as follows:
Applying the same standards that – as set forth in Jackson v. Virginia, on
March 8th, 2004, Mr. Vargas told the confidential informant to purchase – to
pick up the cocaine that he had arranged to buy from the bartender there at the
bar on Bradshaw Street.
That bartender provided [the informant] with the cocaine as planned and took
the money that was to be paid for it.
And that bartender was Mr. Madrigal which I believe is sufficient to go
forward both on the conspiracy and the distribution count.
On [June] 7th, Mr. Vargas arranged with the confidential informant to buy [a]
kilo and a half, give or take, of cocaine and the truck that was carrying what
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United States v. Madrigal, 05-5348
turned out to be the cocaine was driven by – I can’t remember who drove and
who was the passenger.
But in either case, Mr. Gonzalez [sic] and Mr. Madrigal were in that truck that
brought it back.
So I think there is sufficient evidence on both to go to the jury.
To establish guilt on the conspiracy count, the government was required to
prove Madrigal’s: (1) agreement to violate drug laws; (2) knowledge and intent to join the
conspiracy; and (3) participation in the conspiracy. United States v. Salgado, 250 F.3d 438,
446 (6th Cir. 2001). The agreement need not have been formal. Id. at 447. “Although mere
presence at the crime scene is insufficient to show participation, a defendant’s participation
in the conspiracy’s common purpose and plan may be inferred from the defendant’s actions
and reactions to the circumstances.” Id. “[T]he connection between the defendant and the
conspiracy need only be slight, and the government is only required to prove that the
defendant was a party to the general conspiratorial agreement.” Id.
As for the charge of possession with intent to distribute, the government was
required to prove that Madrigal: (1) knowingly; (2) possessed a controlled substance; (3)
with the intent to distribute. United States v. Gibbs, 182 F.3d 408, 424 (6th Cir. 1999).
Possession may be constructive, which “requires that a person knowingly have power and
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United States v. Madrigal, 05-5348
intention to exercise control over an object,” and may be shown by circumstantial evidence.
Id. (citation omitted).
We conclude, for the reasons articulated by the district court, that a rational
trier of fact could find the essential elements of each crime beyond a reasonable doubt.
Madrigal, at Vargas’s direction, participated in the retrieval of 1.5 kilos of cocaine on June
7, 2004. Madrigal’s March 8 sale of a lesser amount of drugs evidences his knowledge of,
and participation in, the enterprise. Again, possession may be constructive, “the connection
between the defendant and the conspiracy need only be slight, and the government is only
required to prove that the defendant was a party to the general conspiratorial agreement.”
Salgado, 250 F.3d at 447.
V.
The district court erred neither as to the interpreter recording nor as to
Madrigal’s motion for judgment of acquittal. We therefore AFFIRM both appellants’
convictions.
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