United States v. Marco Pineda

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3517
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARCO PINEDA,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CR 382 — Elaine E. Bucklo, Judge.
ARGUED SEPTEMBER 30, 2013 — DECIDED FEBRUARY 14, 2014
Before WOOD, Chief Judge, and BAUER and KANNE, Circuit
Judges.
BAUER, Circuit Judge. Defendant-appellant, Marco Pineda
(“Pineda”), was convicted of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced
to 115 months of imprisonment, followed by three years of
supervised release, and ordered to pay a fine of $100. Pineda
appealed the district court’s judgment, arguing: (1) the court
violated his right to a fair jury trial under the Sixth and
2 No. 12-3517
Fourteenth Amendments when it struck the sole Hispanic
member of the jury for cause and replaced him with an
alternate during trial, and (2) the court committed procedural
error by failing to adequately consider all of the factors under
18 U.S.C. § 3553(a)(1) at sentencing. We find no abuse of discre-
tion or procedural error and affirm the district court’s judg-
ment.
I. BACKGROUND
The government prosecuted Pineda, who is Hispanic, in
the United States District Court for the Northern District of
Illinois in a single-count indictment for possessing a firearm as
a convicted felon in violation of 18 U.S.C. § 922(g)(1). Jury
selection for Pineda’s trial began on December 12, 2011.
During voir dire, the sole Hispanic juror in the venire, Felipe
Vega (“Vega”), revealed that his ability to speak and under-
stand the English language was limited. One of the first state-
ments Vega made to the court was, “I’m sorry. I don’t speak
English.” Nonetheless, Vega generally was able to comprehend
and answer the standard biographical questions posed to him
in English by the district court judge. For example, Vega was
able to explain that while he was born in Mexico, he is an
American citizen and took his citizenship examination in
English. Vega mentioned that he has lived in the United States
for twenty years, works on a golf course, and occasionally
watches local televised news in English. In spite of this, Vega
acknowledged that he did not understand the introductory
statements made by the court concerning the federal jury trial
system. In addition, the court had trouble hearing and under-
standing Vega’s responses and frequently asked him to repeat
No. 12-3517 3
his answers. After the inquiry into his English language
capabilities, the court determined that Vega required the
assistance of an interpreter in order to meet the necessary
requirements of jury service.
After questioning the rest of the jury venire, the govern-
ment moved to strike Vega as a potential juror for cause. The
defense objected, arguing that Vega should be left in the venire
because “[Vega] answered the majority of [the court’s] ques-
tions” and should be assigned an interpreter. The judge stated
that she had never dealt with the use of an interpreter for a
jury member before and would “have to look into it,” but she
was “not going to strike [Vega] right now without knowing.”
After concluding that she would not strike Vega from the
venire at that point, the judge called Vega to a sidebar at which
time he indicated that he“sometimes” understood the court’s
questions, but that he would like the assistance of an inter-
preter.
After the sidebar proceedings, the jury venire was excused
from the courtroom. The government repeated its concern that
Vega did not fully comprehend the court’s statements or
questions and so should be stricken for cause. The judge
agreed that she had “some serious questions about what all
[Vega] understood” and called Vega back into the courtroom.
A Spanish interpreter was also brought to the courtroom to
review the court’s voir dire questions and introductory state-
ments with a translation. Through the interpreter, Vega was
able to respond to the court’s questions without difficulty. The
court then excused the interpreter and allowed Vega to rejoin
the venire.
4 No. 12-3517
At this point, both parties provided the court with their
peremptory strikes. Neither the government nor the defense
used a peremptory challenge to remove Vega. The court
therefore seated Vega on the jury and arranged for the inter-
preter to assist him during trial. The district court swore in
Vega and the other jurors, including two alternate jurors.
During a brief recess before the start of trial, the court
reviewed the juror qualification statute and contacted the Chief
Judge of the district court to verify her decision to provide
Vega with an interpreter. The court reconvened with the
parties and indicated that while Vega might have to be excused
for cause, she was unsure as to whether he should be consid-
ered disqualified. The government requested additional time
to research the issue, but the court refused stating, “I can’t
imagine what the harm to the process is to have an interpreter
here this afternoon.” The court noted that the trial would be
short and if Vega ended up being excused for cause due to his
English language deficiencies, one of the two alternates would
simply take his place and the trial would continue.
The jury was called back into the courtroom and the trial
commenced. On the afternoon of December 12, 2011, the jury
heard opening statements from the government and the
defense as well as direct testimony from the government’s first
witness, Officer Colindres. After the defendant’s cross-exami-
nation of Officer Colindres, the court excused the jury until the
next day.
After the jury left the courtroom, the court informed the
parties that she was still concerned with how to address the
issue of using an interpreter to assist Vega. The court reviewed
No. 12-3517 5
Vega’s juror qualification form and observed that it appeared
to have two different types of handwriting. Additionally, Vega
had answered “no” to the question of whether he was able to
“read, write, speak, and understand the English language.”
The court told the parties that she would question Vega about
the questionnaire the following morning, but it seemed to her
that Vega was not in fact qualified to be a juror under 28 U.S.C.
§ 1865(b)(2). The trial adjourned until the next day.
Before testimony resumed on December 13, 2011, the court
informed the parties that there was insufficient funding to pay
for an interpreter to stay for the remainder of the trial, and that
after further research, she discovered that the law does not
require a court to accommodate a juror who does not speak or
understand English. The government renewed its motion to
strike Vega for cause; the defendant objected, arguing that
Vega appeared to understand English well enough to deliber-
ate with the other jurors without the assistance of an inter-
preter. The court was “not satisfied” with the record from the
previous day and asked for Vega to be called in for additional
questioning.
With the assistance of the interpreter, the court informed
Vega that the court could not afford to pay for the interpreter
for the rest of the trial. Vega then explained that he filled
out his juror qualification form with the help of a notary who
translated it for him. Whenever the court attempted to question
Vega without the interpreter’s assistance, Vega had difficulty
responding and requested a translation. Through
the interpreter, Vega explained that he was not able to fully
understand the other jurors while in the jury room when they
6 No. 12-3517
conversed in English. At this point, the court replaced Vega
with the first alternate juror.
The trial continued on December 13, 2011, with the first
alternate juror who had been present for all trial proceedings
the previous day. After Officer Colindres completed his
testimony, the government noted at a sidebar that one of the
jurors appeared to be looking for Vega. Before the next witness
was called, the court explained to the jury that Vega was
excused due to a lack of funding to pay for an interpreter. At
the close of the government’s case, the defense moved for a
mistrial on the basis of Vega’s removal from the jury; the
district court denied the motion. On December 14, the jury
returned a verdict of guilty.
The defendant moved for a judgment of acquittal or a new
trial, based on the removal of Vega. The court denied the
motions.
The Presentence Investigation Report (“PSI”) calculated
Pineda’s offense level to be 24. According to the PSI, Pineda
accumulated 18 criminal history points; the resulting advisory
Guidelines range was 100 to 120 months’ imprisonment.
Neither Pineda nor the government challenged the calculations
in the PSI. Pineda requested a sentence of 30 months, far below
the Guidelines range.
On October 26, 2012, after arguments from both the
government and Pineda, the district court sentenced Pineda to
115 months’ imprisonment, followed by three years of super-
vised release, and imposed a fine of $100. Pineda was also
required to forfeit the handgun and ammunition recovered by
No. 12-3517 7
the police at the time of his arrest. Pineda filed a timely notice
of appeal on November 2, 2012.
II. DISCUSSION
A. Removal and Replacement of Juror Vega
The requirements for jury service include, in relevant part,
that a prospective juror be able to read, write, speak, and
understand the English language and fill out the juror qualifi-
cation form. 28 U.S.C. § 1865(b)(2), (b)(3). English language
proficiency is essential for a juror to comprehend the issues
presented at trial, assess the evidence, and come to an inde-
pendent judgment. If a potential juror cannot meet this
requirement, he should be disqualified from serving as a juror.
A juror that is unable to read, write, speak, and understand
English may be appropriately stricken for cause. See, e.g.,
United States v. De La Paz-Rentas, 613 F.3d 18, 24 (1st Cir. 2010)
(upholding the constitutionality of the requirement that
individuals understand and be literate in English to serve on
a federal jury).
Federal Rule of Criminal Procedure 24 provides for the
removal and replacement of jurors “who become or are found
to be unable or disqualified to perform their duties” after the
trial has begun as long as the court has a reason to excuse the
juror for cause and there was “some changed circumstance.”
Fed. R. Crim. P. 24(c)(1). “It is within the trial judge’s sound
discretion to remove a juror whenever the judge becomes
convinced that the juror’s abilities to perform his duties
become impaired.” United States v. Speer, 30 F.3d 605, 610 (7th
Cir. 1994) (quoting United States v. Huntress, 956 F.2d 1309, 1312
(5th Cir. 1992)). This Court will not overturn the trial court’s
8 No. 12-3517
decision to dismiss a juror pursuant to Rule 24(c) unless no
legitimate basis for the court’s decision can be found in the
record, and the appellant shows that the juror’s dismissal
prejudiced his case. United States v. Vega, 72 F.3d 507, 512 (7th
Cir. 1995).
In this case, the district court judge determined that Vega
did not possess the requisite English language proficiency to
serve as a juror without an interpreter. Because this is a
legitimate basis for removing a juror, the district court did not
abuse its discretion by removing and replacing Vega.
Pineda argues that there was no legitimate basis for
removing Vega because Vega’s proficiency in English did not
change from the first day of trial to the last. While Vega’s
language abilities did not change overnight, it became
apparent that his ability to communicate with the other jurors
and to understand the trial proceedings were inadequate. The
court learned that Vega did not fill out his juror qualification
form on his own, but required the assistance of a notary to
translate the form for him. Vega also made a direct statement
to the court that he was unable to communicate freely with the
other jurors without the assistance of an interpreter. The
removal was amply justified.
Pineda cites United States v. Dempsey, 830 F.2d 1084 (10th
Cir. 1987) to argue that Vega was qualified to remain on the
jury; however, this case is distinguishable. In Dempsey, an
interpreter was provided for a deaf juror throughout the
duration of the trial. Id. The district court held that utilizing
the interpreter for the deaf juror was “an acceptable means to
accommodate [the juror’s] hearing loss.” Id. at 1088. Even
No. 12-3517 9
without the assistance of an interpreter, the juror was able to
competently fill out her juror qualification form, read lips, and
speak for herself when communicating with the court during
voir dire and with the other jurors during jury deliberations. Id.at 1086–87. Moreover, the court noted that the deaf juror was
well-educated, worked in an environment that required her to
understand and communicate in English, and could lip read to
verify the accuracy of the interpreter’s translations. Id. Essen-
tially, the juror could still understand trial proceedings and
communicate with other jurors even if the interpreter was
unavailable; the assistance of an interpreter merely enhanced
the juror’s communication abilities.
By contrast, Vega was unable to effectively communicate or
understand trial proceedings without the assistance of an
interpreter. He required an interpreter for even a basic compre-
hension of the trial proceedings and had great difficulty
understanding and communicating with the other jurors.
Pineda then cites United States v. Campbell, 544 F.3d 577 (5th
Cir. 2008) to argue that a mistrial should have been declared
after Vega’s removal from the jury. In Campbell, the district
court declared a mistrial after it discovered that a juror’s
limited ability to speak English precluded him from meaning-
fully participating in jury deliberations. Id. at 580. At the close
of testimony, the judge sent the jury to deliberate. Id. The jury
sent a note to the trial judge stating that one juror, Francisco
Ramirez, was unable to understand what was happening and
needed interpretation of the deliberations. Id. at 579. Ramirez
confirmed this, stating in open court that he was unable to
participate in deliberations because his limited English
language abilities hindered communication with the other
10 No. 12-3517
jurors. Id. at 580. The court noted that it could appoint an
interpreter for deliberations, but that it would not assuage the
concerns over whether Ramirez had sufficiently understood
the trial testimony and proceedings. Id. at 582. The court then
suggested that Ramirez be dismissed. Id. Since the alternate
jurors had already been excused, however, the jury would
have to continue deliberations with only eleven jurors. Id. The
defense refused this alternative. Id. The district court found
that Ramirez could not “effectively communicate and partici-
pate in the jury deliberative process” and declared a mistrial.
Id.A mistrial in Campbell was appropriate because the jury had
begun deliberations when Ramirez’s inability to communicate
came to the court’s attention. At this point, the alternate jurors
had been dismissed and did not have the ability to replace
Ramirez. “When facts arise before the start of deliberations that
cast doubt on a juror’s ability to perform [his] duties, the
district court bears discretion to excuse the juror and replace
[him] with an alternate.” United States v. Smith, 918 F.2d 1501,
1512 (11th Cir. 1990) (citations omitted). In this case, when the
court discovered that Vega was unable to perform his duties,
she replaced him with an alternate who had been present for
the entirety of the trial.
Whatever the basis for removing Vega, overturning the
district court’s decision pursuant to Rule 24(c) requires Pineda
to show that the removal of the juror had a prejudicial effect on
his trial. Vega, 72 F.3d at 512. Pineda argues that the other
jurors appeared to be “alarmed” by the removal of Vega, the
sole Hispanic juror, and that the court’s explanation was
insufficient in assuaging their concerns. The court and both
No. 12-3517 11
parties were aware at trial that upon Vega’s removal, the other
jurors wanted to know why he was excused. The court
promptly addressed this issue by making the following
statement to the jury: “I excused a juror who had to have an
interpreter because it turns out that there really aren’t enough
funds to pay interpreters, so I had no choice. Thank you.”
Although this is the explanation the court provided to the
jury, the lack of funding was not the court’s primary or sole
reason for removing Vega from the jury. Nonetheless, the
court’s comments to the jury after Vega was removed made it
clear that Vega was removed because of his inability to
communicate sufficiently with the other jurors in English, not
because of his ethnic background.
In conclusion, even if the court made a mistake by allowing
Vega on the jury for the first day of trial, any mistake was
harmless and effectively remedied. As soon as the court was
informed that Vega could not adequately fulfill his duties as a
juror, the court cured the error quickly and effectively by
replacing him with an alternate juror who had been present for
the duration of the trial. In sum, the district court’s decision to
dismiss and replace Vega was a sound method of remedying
the situation, and the decision was not an abuse of discretion.
B. Consideration of Sentencing Factors
Pineda also argues that the court committed procedural
error by failing to consider all of the factors under 18 U.S.C.
§ 3553(a)(1) at sentencing. This Court reviews a district court’s
sentencing decisions by first ensuring that no significant
procedural error has been committed. Gall v. United States, 552
U.S. 38, 51 (2007). If we determine that the sentence was
12 No. 12-3517
procedurally sound, we then consider the substantive reason-
ableness of the district court’s sentence under an abuse of
discretion standard. Id. A sentence within the advisory
Guidelines range is presumed reasonable and the burden falls
on the defendant to prove otherwise. Id. The findings of the
trial judge in sentencing will only be reversed if the decision
lacks any foundation or the court is “left with the definite and
firm conviction that a mistake has been committed.” United
States v. Souffront, 338 F.3d 809, 832 (7th Cir. 2003); United States
v. McIntosh, 198 F.3d 995, 999 (7th Cir. 2000).
The district court must provide reasons for its sentencing
decisions and address all of the defendant’s principal argu-
ments that are “not so weak as to not merit discussion.” United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). How-
ever, the courts are not required to “tick off every possible
sentencing factor in detail and discuss separately every nuance
of every argument.” United States v. Collins, 640 F.3d 265, 271
(7th Cir. 2011).
In his submissions to the court for sentencing, Pineda
requested a sentence below the Guidelines range based on his
personal and family history. Pineda recounted that he is the
son of an alcoholic father who frequently beat his wife and
children. According to Pineda, both his older brothers also had
problems with alcohol, creating a home environment that led
him to begin drinking regularly as a teenager. Pineda ex-
plained that his prior criminal offenses, including gang
loitering, residential burglary, attempted robbery, battery,
disorderly or reckless conduct, and soliciting unlawful drug-
related business, were mostly non-violent and were primarily
committed in his mid-teens to early twenties. Moreover,
No. 12-3517 13
Pineda detailed his more recent history, including supporting
his fourteen-year-old son, caring for his uncle’s ill father, and
his pursuit of further education while in pre-trial detention.
Pineda argues that the district court sentencing decision failed
to consider these potentially mitigating circumstances and that
a lower sentence was warranted in light of these factors.
The record here shows that the court adequately addressed
Pineda’s arguments, noting that the court found “nothing
whatsoever here that’s mitigating.” When discussing Pineda’s
history and characteristics, the court stated:
So when we get to [the] history and characteristics of
the defendant, and really other than, as you said,
that, you know, it’s true, people do get to federal
court and all of a sudden that revolving door that
they have been able to take advantage of in state
court from which sometimes some people learn and
sometimes they don’t, and clearly Mr. Pineda had
not learned from it, and all of a sudden you’re here
in federal court. And yes, indeed it is serious.
Noting the unfortunate pattern of repeat offenders such as
Pineda receiving relatively light sentences in state court until
they are subjected to the federal system, the court determined
that Pineda’s personal and family characteristics were not
mitigating. In light of the severity of his offense and the fact
that Pineda had continuously returned to the criminal justice
system, the court did not err when it decided that a sentence
within the Guidelines range was warranted.
Pineda further argues that the district court made a clear
factual error at sentencing when she stated that at the time of
14 No. 12-3517
Pineda’s arrest, he had the intention of using the firearm he
possessed and carried to the scene of a homicide. Specifically,
the district court commented:
The statement that night, the statement of what had
happened was corroborated certainly by what had
happened to this other person, and I’m left with the
idea of a 37 or 38-year-old, maybe not a 37-year-old
man well into adulthood saying “I’m going out with
a loaded gun.” I mean, if you’d never had any
history and didn’t have the law saying you couldn’t
have one at all, for what reason? I mean, I have to
assume with the intention, depending upon the
circumstances, of using it.
The court’s comments address evidence presented at trial
about Pineda’s possession of a loaded gun, in particular
Pineda’s statement to the police at the time of his arrest. Pineda
said, “Officer, I just found out that Franco got killed. I went
and picked up the gun, and I was going over there to find out
what had happened.” The gun Pineda possessed at the time of
his arrest was loaded with seven live rounds in the magazine
and one live round in the chamber. His criminal history
revealed that Pineda had three prior convictions on gun
charges, including one conviction for aggravated battery where
Pineda shot another individual with a gun. In sum, this
evidence led the district court judge to reasonably infer that
Pineda was willing to use the gun “depending upon the
circumstances.” The court did not clearly err in determining
that the defendant was capable of using the gun he possessed
and would have used it if the circumstances warranted it. In
summary, we find no error in the district court’s sentencing
No. 12-3517 15
decisions. The within-Guidelines range the court imposed was
reasonable and not an abuse of discretion.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.