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United States v. Zaragoza

September 11, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RAFAEL ZARAGOZA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 05 CR 19-Sarah Evans Barker, Judge.

The opinion of the court was delivered by: Manion, Circuit Judge.

ARGUED MAY 8, 2008

Before BAUER, MANION, and WILLIAMS, Circuit Judges.

Rafael Zaragoza was charged, along with ten co-defendants, with conspiring to possess methamphetamine ("meth") with the intent to distribute it. Following a four-day trial at which a number of Zaragoza's co-defendants testified against him, the jury returned a verdict of guilty, and he was eventually sentenced to a term of 300 months' imprisonment. Zaragoza appeals. While he does not deny dealing meth, he argues that there was insufficient evidence to support the jury's finding that he engaged in a conspiracy with his co-defendants to do so. Zaragoza also asserts that he had difficulty understanding the proceedings against him, and that his due process rights were violated when the district court failed to make an inquiry regarding this fact after being alerted to it. We affirm.

I.

The following facts were presented to the jury at Zaragoza's trial. On February 23, 2003, an Indiana State Trooper pulled over Zaragoza's co-defendant Katrina Eschman for driving at night without her headlights. The trooper discovered marijuana, cocaine, meth, heroin, and $3,463.61 in cash in Eschman's car. Eschman also had an address book containing the phone number for someone named "Watchie," later identified by numerous witnesses as Zaragoza. Eschman said that Zaragoza was her drug supplier. She agreed to cooperate and placed a call to him that was monitored by police, and arranged for him to deliver to her some cocaine and meth. While Zaragoza was traveling towards Eschman's house shortly after she placed this call, he was stopped by authorities. Although he was not found to be in possession of any drugs, the arresting officer called the phone number Eschman had said belonged to her supplier, and Zaragoza's cell phone rang. Officers then searched Zaragoza's house and dis-covered $11,500 in cash and a handgun. While state charges were brought against Zaragoza as a result of these events, those charges were subsequently dismissed without prejudice.

On October 16, 2004, co-defendant Brijido Ortiz was stopped while driving through Nebraska after a state trooper determined that the vehicle he was driving had been reported stolen in Indiana and possibly contained a missing juvenile. Ortiz was in fact traveling with the juvenile, who was eight months pregnant, and upon searching the car officers found a bag containing approximately 436 grams of meth. Ortiz was arrested, and he eventually pleaded guilty to federal charges filed against him relating to this arrest in Nebraska. Ortiz testified that he began working as a drug courier for Zaragoza in late 2003 or early 2004. He would travel to California with money Zaragoza provided, purchase meth from Zaragoza's brother, Caesar, and then carry the drugs back to Indiana. Zaragoza paid Ortiz $1,000 to make these trips, and he was on the return portion of one of these trips when he was arrested in Nebraska. Ortiz estimated that, prior to his arrest, he had traveled to California for Zaragoza ten times and returned with a total of at least 20 pounds of meth.

Once he returned to Indiana, Ortiz would distribute the meth for Zaragoza to lower-level dealers, and Zaragoza paid him $300 a week to make these distributions. Ortiz testified specifically that he delivered meth to Zaragoza's co-defendants Wendell Mason, Michelle Ballard, and Timothy Samples. When Ortiz collected money from these individuals, he stated that he would keep it until "it added up," at which point he passed it on to Zaragoza. Another co-defendant, Garry Lowery, verified that Zaragoza was selling meth to Mason. Lowery testified that he began purchasing meth for personal use from Mason in late 2003 or early 2004. During this period, Mason told Lowery that he bought the meth he sold Lowery from Zaragoza.

On October 22, 2004, police initiated a traffic stop of co-defendant Christopher Robertson during which he threw a bag containing meth from his car. The officers had reason to believe that there was more meth in Robert-son's residence, and they obtained his consent to search the property. The search of Robertson's property yielded multiple baggies, balloons, and other containers filled with meth. Robertson, who pleaded guilty to the charges filed against him in this case, testified that he sold meth out of his residence, and that he purchased that meth from Zaragoza. Robertson testified at trial that for the nine months leading up to his arrest, he purchased meth from Zaragoza anywhere from twice a day up to every three days in amounts ranging from one to ten ounces. Zaragoza "fronted" Robertson the meth, meaning Robertson was given the meth without having to pay first, and he would then pay Zaragoza once the meth was sold.

When Robertson eventually paid Zaragoza for the drugs, he would wrap the cash in rubber bands in increments that were easy to handle and count. Robertson's testimony regarding the method by which Zaragoza received payment was confirmed by the testimony of an officer who had pulled Zaragoza over for speeding on September 6, 2004. Upon a search of Zaragoza's vehicle, the officer discovered five bundles of bills bound with rubber bands, each bundle containing ten $100 dollar bills. Zaragoza also had $2,700 on his person. While there was no testimony regarding whether the $2,700 was wrapped in a particular way, Robertson testified that he had paid Zaragoza that amount of money on that day. Robertson described his relationship with Zaragoza as solely a business relationship. Robertson stated that he was also aware that Zaragoza was selling significant quantities of meth to Mason and Samples.

On December 14, 2004, police executed a search warrant at the home of Ballard and her boyfriend and co-defendant, Antonio Montes.*fn1 Upon searching the residence, police discovered meth, digital scales, and $300 in Ballard's purse. Ballard, who also pleaded guilty to the charges filed against her in this case, testified that Montes acted in a courier capacity for Zaragoza similar to Ortiz, traveling to California and returning with meth. Ballard sold meth out of her residence supplied to her by Montes, Ortiz, or Zaragoza and had been engaged in these sales with Montes since mid-2003. Montes paid Zaragoza for the meth he and Ballard sold from their residence, at one time paying him as much as $10,000.

Based upon these incidents, and a number of others not relevant here, the government initiated this case against Zaragoza by filing a criminal complaint on September 13, 2005. A superseding indictment was returned on October 13, 2005, against Zaragoza and ten codefendants charging them with conspiring to possess with intent to distribute 500 or more grams of meth in violation of 21 U.S.C. §§ 841(a)(1) and 846. Zaragoza's codefendants pleaded guilty, and the charges against Zaragoza were tried before a jury commencing on October 16, 2006. Because he was a Spanish speaker, Zaragoza was assisted during the trial by Spanish interpreters. Laura Garcia-Hein, a federally certified Spanish language interpreter, was present on the first day of trial. Garcia-Hein was assisted during jury selection by Christina Cartwright, who was not federally certified. Before opening statements, Cartwright was replaced by Claudia Samulowitz, a federally certified interpreter. Garcia-Hein and Samulowitz continued translation on the second and third days of trial. On the fourth and final day of trial, Samulowitz and Margaret Redd, also a federally certified interpreter, translated.

On the final day of trial, Zaragoza's attorney alerted the court that Zaragoza was "having a problem with the interpreter not interpreting as he believes that she should interpret." Zaragoza's attorney further informed the court that Zaragoza had raised the issue with her the day before, and stated that Zaragoza was "not one hundred percent understanding the interpretation. It can be an issue of dialect." The district court noted on the record that the interpreters were certified, and that Zaragoza appeared to be receiving clarification where necessary because the court had observed him conversing and exchanging notes with the interpreters. The district court further noted that Zaragoza had conversed with his attorney in English during trial, and that numerous witnesses had testified that they communicated with Zaragoza in English. Later that day, after the trial concluded, the jury returned a verdict of guilty.

The court proceeded to sentencing on February 21, 2007. Zaragoza's counsel requested that the court continue the hearing because the interpreter was not certified, and because she spoke a different Spanish dialect than Zaragoza. The district court denied Zaragoza's request, noting that it had ruled on a similar request at trial, and that there was no evidence suggesting that the current interpreter was deficient. The court proceeded with sentencing, and on February 27, 2007, ...


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