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United States v. Leiva

United States Court of Appeals, Seventh Circuit

April 29, 2016

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
PAVEL LEIVA, Defendant-Appellant

         Argued January 13, 2016.

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[Copyrighted Material Omitted]

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          Appeal from the United States District Court for the Central District of Illinois. No. 3:13-cr-30059-RM-TSH-1 -- Richard Mills, Judge.

         For United States of America, Plaintiff - Appellee: Greggory R. Walters, Attorney, Office of The United States Attorney, Peoria, IL.

         For Pavel Leiva, Defendant - Appellant: Johanna M. Christiansen, Attorney, Office of The Federal Public Defender, Peoria, IL.

         Before WOOD, Chief Judge, and BAUER and HAMILTON, Circuit Judges.

          OPINION

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          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.

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Leiva, 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 Gallego hatched a scheme: 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 were driving on Interstate 55 through 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 around 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 Elantra.

         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 exited 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 Elantra.

         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

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hands 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, " Sí ." Weiss asked, " Sí ?" and Leiva again said, " Sí ."

         By this time, other state troopers had arrived on the scene, as had state police agents. Weiss 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 were 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 Elantra. 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. The women further testified that when Weiss pulled over the Elantra, Leiva told them to give him the fake driver's licenses that he had made for them. He also instructed Gallego to get the rental agreement from the glove box and told both women to say nothing.

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          Leiva called three expert witnesses who stated that " Puedo buscar su coche?" does not mean, " Can I search your car?" All three witnesses stated that " Puedo buscar su coche?" means " May I look for your car?", " May I get your car?", or " May I locate your car?" It does not indicate a question regarding a search of the interior of the car. Rather, the proper phrase for " May I search [the interior of] your car?" would be " Puedo revisar su carro ?" or " Puedo registrar su carro?" One expert testified that if Weiss had said, " Puedo buscar en su coche?", a native Spanish speaker may have understood the phrase to mean " May I search inside your car?"

         Although determining that Weiss' Spanish phrase was not properly phrased, the magistrate judge still found that Leiva had consented to the search and that both the search and subsequent seizure of evidence in the car were proper, and recommended that the district court deny Leiva's motion to suppress. The district court adopted the recommendation and denied the motion to suppress.

         C. The Trial

         At trial, Leiva contested Martin's and Gallego's story that he had coordinated the operation. Instead, he claimed that he was a patsy who had no knowledge of the women's scheme. He claimed that Martin and Gallego only spoke English to one another and that, because he only speaks Spanish, he did not understand what they were doing. He was therefore unwittingly ensnared in their fraud conspiracy. He denied knowing that the cards were counterfeit and that any items were purchased illegally, and he denied recruiting the women, coordinating the scheme, and directing them in any way. Martin and Gallego testified, as they had at the suppression hearing, that Leiva had indeed coordinated everything.

         Leiva testified on the fifth day of his trial, with the aid of two interpreters. His defense counsel told him to raise his hand while testifying if he had difficulty understanding any questions. He says that he had no difficulties with the first interpreter, who translated for him in the morning. By contrast, he notes multiple problems with the second interpreter, who began translating after the lunch break. This interpreter had also translated on the second, third, and fourth days of the trial. There are various moments where difficulty with translation arose. For example, during direct testimony, Leiva was asked about a video of one of the retail transactions, and the following exchange occurred:

Q. Do you see ... yourself in this video?
A. Yes.
Q. Okay. What are you wearing?
THE INTERPRETER: Sorry. He said " the telephone" and said[,] " [W]hat are you wearing[?]"
Q. Okay.
THE INTERPRETER: And he said[,] " [S]orry about that." He didn't understand that question.
Q. Okay. What are you wearing?
THE INTERPRETER: He says white pull-over. And he's saying something that I don't--pants.
Q. Okay ... .
So what are you doing right here? Do you remember? THE INTERPRETER: He's with his cellular. He says, " I'm with my cellular. ...

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