January 13, 2016.
[Copyrighted Material Omitted]
from the United States District Court for the Central
District of Illinois. No. 3:13-cr-30059-RM-TSH-1 -- Richard
United States of America, Plaintiff - Appellee: Greggory R.
Walters, Attorney, Office of The United States Attorney,
Pavel Leiva, Defendant - Appellant: Johanna M. Christiansen,
Attorney, Office of The Federal Public Defender, Peoria, IL.
WOOD, Chief Judge, and BAUER and HAMILTON, Circuit Judges.
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.
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
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.
The Traffic Stop
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.
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.
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.
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
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.
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, "
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
The Suppression Hearing
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.
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?"
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.
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
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.
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.
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?
Q. Okay. What are you wearing?
THE INTERPRETER: Sorry. He said " the telephone"
and said[,] " [W]hat are you wearing[?]"
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. ...