United States v. Jose Gutierrez

757 F.3d 785, 2014 WL 3056808
Court of Appeals for the Eighth Circuit·Decided July 8, 2014·No. 12-4019, 13-1327·Published·Cited by 11 cases

Opinion

COLLOTON, Circuit Judge.

Jose Rodriguez Gutierrez and Manuel Perez Sanchez were charged together with drug trafficking offenses. Rodriguez Gutierrez pleaded guilty to one count of conspiracy to distribute methamphetamine, and Perez Sanchez was convicted by a jury on one count of conspiracy to distribute and five counts of distribution or possession with intent to distribute. Perez Sanchez received a sentence of 60 months’ imprisonment on each count, to be served concurrently. He appeals two evidentiary rulings by the district court 1 and the sufficiency of the evidence to support his conviction. The district court 2 sentenced Rodriguez Gutierrez to 156 months’ imprisonment, and he appeals the district court’s computation of the advisory range under the sentencing guidelines.

Law enforcement officers in Des Moines began an investigation in late 2011 into the distribution of so-called “ice” methamphetamine in the area. 3 They identified Rodriguez Gutierrez and Perez Sanchez as participants in the trafficking. Over several months of investigation, officers arranged multiple controlled purchases from Rodriguez Gutierrez and Perez Sanchez. Both men were arrested and charged in May 2012. Rodriguez Gutierrez pleaded guilty, while Perez Sanchez proceeded to a trial at which he was convicted.

I.

Perez Sanchez complains that the district court abused its discretion at trial by allowing a witness for the prosecution to testify as an expert. Steven Rhodes testified that he had reviewed Spanish-language audio recordings of controlled drug transactions involving Perez Sanchez and prepared written transcripts of the dialogue in English. The district court permitted Rhodes to testify as an expert after Rhodes detailed his qualifications. Rhodes stated that he was fluent in Spanish, received a minor degree in Spanish in eol- *788 lege, attended an interpreter orientation class in Iowa in 2007, and passed written and oral examinations to become a state-certified interpreter in Iowa in 2008. Rhodes roughly defined “translation” as taking a recording and typing up a transcript, and “interpretation” as the oral process of converting words from Spanish to English. He said that he was certified in Iowa for both translation and interpretation and that he had testified 25 to 30 times in Iowa state court, including on some occasions that involved “translations” from Spanish to English.

Perez Sanchez asserts that Rhodes was not qualified to testify as an expert “translator,” because his certification in Iowa was limited to work as an oral language interpreter, and he was not certified by any organization as a translator. He relies on the Supreme Court’s decision in Taniguchi v. Kan Pacific Saipan, Ltd., — U.S. -, 132 S.Ct. 1997, 182 L.Ed.2d 903 (2012), which construed the phrase “compensation of interpreters” in a federal statute concerning the award of costs to prevailing parties, 28 U.S.C. § 1920. The Court concluded that while “the word ‘interpreter’ can encompass persons who translate documents,” 132 S.Ct. at 2004, the ordinary or common meaning of “interpreter” does not include those who translate writings. Id. at 2003.

Under Federal Rule of Evidence 702, a witness may be “qualified as an expert by knowledge, skill, experience, training, or education.” Whether a witness is formally certified in a field by a professional organization may be relevant to his expertise, but the rule does not require any particular imprimatur. United States v. Barker, 553 F.2d 1013, 1024 (6th Cir.1977).

There was a sufficient basis here for the district court to conclude that Rhodes was an expert on the matters about which he testified. That Rhodes was a certified and experienced interpreter and fluent in Spanish and English was certainly probative of his expertise. The work about which he testified included converting Spanish oral recordings into English, and then preparing a written record of the dialogue in English. As the district court observed, the exercise was a hybrid between pure oral interpretation and pure written translation. Whether or not Rhodes was formally certified by a professional organization as a written translator, he had enough knowledge of the language, skill in interpretation, and experience with both interpretation and translation to justify the district court’s receipt of his testimony as that of an expert under Rule 702.

Perez Sanchez also argues that the district court erred in permitting the jury to read the transcripts that Rhodes prepared. At trial, the court admitted the Spanish-language audio recordings into evidence, and distributed the transcripts to the jury as an aid, but did not admit the transcripts into evidence or send them to the jury room.

Perez Sanchez does not challenge this procedure, although it appears to be unorthodox. In a case with English-language recordings, the audio recordings typically are the only evidence of the conversation; any transcripts are furnished to the jury merely as an aid in following the audio. United States v. McMillan, 508 F.2d 101, 105-06 (8th Cir.1974). But where the evidence is a foreign-language recording, the jury usually cannot understand the audio recording. Transcripts must be prepared and introduced as evidence so that the jury has a basis for considering the substance of the recording. United States v. Chavez-Alvarez, 594 F.3d 1062, 1068 (8th Cir.2010). In this case, the court did not receive the transcripts as evidence, and the jury presumably could not understand the audio recording. But *789 the transcripts, according to the district court, were “given to the jury to help the jury to whatever extent they can.” Perez Sanchez did not object to the jury’s use of the transcripts under this direction.

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United States v. Jose Gutierrez, 757 F.3d 785, 2014 WL 3056808 (8th Cir. 2014).

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