United States v. Leiva

821 F.3d 808, 2016 U.S. App. LEXIS 7956, 2016 WL 2641964
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 29, 2016
DocketNo. 15-1930
StatusPublished
Cited by12 cases

This text of 821 F.3d 808 (United States v. Leiva) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Leiva, 821 F.3d 808, 2016 U.S. App. LEXIS 7956, 2016 WL 2641964 (7th Cir. 2016).

Opinion

BAUER, Circuit Judge.

Defendant-appellant, Pavel Leiva, appeals his conviction for conspiracy to possess and use counterfeit credit cards with intent to defraud in violation of 18 U.S.C. §§ 1029(a)(1), 1029(a)(3), and 1029(b)(2), and possession of fifteen or more counterfeit credit cards with intent to' defraud in violation.' of ,18 U.S.C. § 1029(a)(3). Leiva’s first two arguments stem from translation issues that arose during both a traffic stop that resulted.in a search of Leiva’s. car and his subsequent trial. [812]*812Leiva, a Florida resident who is from Cuba and only speaks Spanish, contends that the translation issues led to an unauthorized search of his car. This search yielded the majority of the physical evidence used against him at trial. He also contends that translation issues with the interpreter during his trial testimony violated both his due process rights and the Court Interpreter’s Act, 28 U.S.C. § 1827 (the “CIA”). Leiva’s final argument is that- the district court did not make sufficient findings of fact to support the imposition of supervised release. We reject all three arguments and affirm Leiva’s conviction and sentence.

I. BACKGROUND

Leiva, Amberly Martin, and Paola Galle-go hatched a scherrie: Leiva would supply Martin and Gallego with fraudulent credit cards and the women would use the cards to purchase merchandise. On June 21, 2013, the three flew from Miami, Florida to Milwaukee, Wisconsin to execute their plan. Upon arriving in Milwaukee, Leiva rented a white Hyundai Elantra, and proceeded to chauffeur Martin and Gallego around Wisconsin and' Illinois. From June 22’ through June 26, the women, operating under the names “Geena Rose” and “Sandra Vega,” engaged in a spending spree at various stores using the cards that Leiva had provided. The women bought cell phones, iPad minis,, and gift cards, as well as personal items for themselves such as women’s shoes, purses, and wallets. On June 26, the three weré driving on Interstate 55'throtigh Springfield, Illinois, destined for' St. Louis, Missouri.

A. The Traffic Stop

Illinois State Trooper Dustin Weiss was on duty that day, parked in an unmarked patrol car in the median of the highway. He saw the white Hyundai Elantra pass him, slow down below the posted speed limit, and shift from the center lane to the right lane. Weiss observed the driver of the car attempt - to hide himself as he changed lanes.' Wanting to investigate further, Weiss pulled into traffic behind the Elantra. He then observed the driver move.arpund within the car, and saw the car swerve onto the shoulder of the highway and then swerve back into the right lane. Weiss pulled over the car for improper lane use, and parked his patrol car twenty to twenty-five feet behind the Elan-tra.

=While in his patrol car, Weiss conducted a check, on the license plate and found that the Elantra was a rental. He exited his car and approached the Elantra on the passenger side. When he reached the Elantra, he identified himself, explained why he-had pulled over the car, and asked some -initial questions. Leiva did not respond to Weiss’ questions; instead, he handed Weiss his driver’s license and rental car agreement. Leiva also said something in Spanish to Gallego, who was in the front passenger seat. Gallego told Weiss that Leiva did not speak English. ¡ - Weiss, who does not speak Spanish, asked Gallego to explain to Leiva why he had stopped the car, and that he was only going to issue Leiva a warning.

Weiss then returned to his patrol car to perform computer checks on the car and Leiva. After .running the checks, Weiss used his loudspeaker to ask, “Can you have the driver come back to my vehicle?” Leiva qxited the Elantra, walked to Weiss’ patrol car, opened the front passenger door, and sat in the front passenger seat. Martin and Gallego remained in the Elan-tra.

In the patrol car, Weiss again attempted to communicate with Leiva, but Leiva did not respond. Weiss- noticed that the carotid artery in Leiva’s neck was beating at a fast rate, his forehead was sweaty, his stomach was visibly pulsating, and his [813]*813hands were shaking. When Leiva did not respond, Weiss obtained some prepared Spanish translations of questions .that were on a sheet in the patrol car. He asked Leiva about his travels. After this questioning, Weiss went to the' Elantra, and spoke with Gallego about the trip. When he returned to the patrol car, Weiss completed a written warning for Leiva, and had Leiva sign it. Weiss handed Leiva the warning, the rental agreement, and Leiva’s license. Weiss then entered the phrase ‘You are free to go”' into the iTranslate application on his iPhone,[ and read the translated Spanish to Leiva.

As Leiva began to exit the patrol car, Weiss said, “Un momento,” and asked in English if he could speak with Leiva further. Leiva did not respond; he only stopped and looked at Weiss. Weiss asked, “Puedo buscar su coche?” which Weiss believed meant, “May I search your car?” Leiva said, Yes,” in'English, nodded, and then said, “Si.” Weiss asked, “Sí?” and Leiva again said, “Si.” 1

By this time, other state troopers had arrived on the scene, as had state police agents. Wbiss searched the Elantra with their assistance. Leiva stood by the patrol car unrestrained during the search: In the car, the officers found 65 fraudulent credit cards, five iPad minis, women’s purses, mail and store receipts, and five Walmart gift cards. They also found four typewritten pages containing credit- card numbers, expiration dates, and the names and addresses of the actual cardholders. Gallego later testified that these were probably Leiva’s notes.

B. The Suppression Hearing

Leiva, Martin, and Gallego weré indicted for both conspiracy to possess and use counterfeit credit cards with intent to defraud and possession of at least fifteen counterfeit credit cards with intent to defraud. Martin and Gallego pleaded guilty, but Leiva went to trial. Both Martin and Gallego testified for the prosecution at Leiva’s trial.

Leiva moved to suppress the evidence confiscated during the search of the Elan-tra. ' Weiss testified at the suppression hearing, as did Martin and Gallego. Notably, Leiva offered no contradiction of Weiss’ account. When cross-examined, Weiss admitted that he did not ask either Gallego or Martin to translate regarding consent to search.' He also testified that he did not ask'any other officer to help him with his Spanish and that he did not use the iTranslate application to get the phrase, “Puedo buscar su coche?”1

At the hearing, Martin and Gallego testified that Leiva was the ringleader of the scheme. As the magistrate judge noted, the two women testified that Leiva “supervised” them, “told them what to buy[,] and watched them as they did- so.” ' Further, Leiva stored the stolen goods'in the trunk of the Elantra and forbade the women from opening the trunk without his permission. He also stored the stolen cards in the glove box.

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Bluebook (online)
821 F.3d 808, 2016 U.S. App. LEXIS 7956, 2016 WL 2641964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-leiva-ca7-2016.