United States v. Johnson, Wilton

In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-3902, 00-1516, 00-1524 & 00-1525

United States of America,

Plaintiff-Appellee,

v.

Wilton Johnson, Jose J. Salazar,
Javier C. Santa Cruz, and Jesus G. Guzman,

Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 98 CR 845--George W. Lindberg, Judge.

Argued/* February 26, 2001--Decided April
23, 2001

Before Bauer, Posner, and Kanne, Circuit
Judges.

Bauer, Circuit Judge. This opinion
addresses a multi-issue appeal from a
multi-defendant criminal drug trial. Our
examination of this case leads us to
affirm on all claims.

BACKGROUND

In early November 1998, Octavio Holguin
asked Wilton Johnson to transport drugs
for him from El Paso, Texas to the Days
Inn Hotel in Shorewood, Illinois. Johnson
and two others piled into a truck with a
trailer attached and headed out to pick
up over 500 kilograms of bricked cocaine
in boxes from Holguin. En route to
Illinois, the men were pulled over on a
traffic stop, whereupon Johnson consented
to a search of the truck. The men were
arrested and agreed to perform a
controlled delivery with DEA agents. So,
Johnson called Holguin to tell him that
they would arrive in Illinois a day late
due to car troubles. When the men finally
arrived at the Days Inn, Johnson paged
Holguin, who had driven up from El Paso
with Jose Jesus Salazar.

Shortly after Johnson had paged Holguin,
Salazar and Javier Carrillo Santa Cruz
emerged from one of the hotel rooms and
walked through the parking lot to the
truck. They milled around the truck, got
in, pulled it slightly forward, got out,
and peeked inside the trailer. During the
next hour, Salazar and Santa Cruz
repeated this dance two more times, but
on both occasions, they also went inside
the trailer for a spell, seemingly moving
the boxes near the door of the trailer to
ease their eventual removal. On Salazar
and Santa Cruz’ fourth jaunt from the
hotel room to the trailer, Guzman joined
them, whereupon he proceeded to drive a
van up to the rear of the trailer.
Salazar and Santa Cruz opened the trailer
doors, Guzman opened the van doors. All
three then began to move one of the boxes
out of the trailer and into the van. At
that point, DEA agents moved in to arrest
the men. Salazar consented to a search of
the Days Inn hotel room, in which a bank
deposit receipt was found. The receipt
revealed that Santa Cruz had deposited
approximately 34,000 pesos into Salazar’s
bank account in Mexico about two months
prior. Holguin was never apprehended.

Johnson, Guzman, Santa Cruz, and Salazar
were charged with conspiracy to possess
500 kilograms of cocaine with intent to
distribute it under 21 U.S.C. sec. 846
(Count 1). Guzman, Santa Cruz, and
Salazar were also charged with possession
of 500 kilograms of cocaine with intent
to distribute it under 21 U.S.C. sec.
841(a)(1) (Count 2). A jury found
Johnson, Guzman, and Salazar guilty as
charged, and Santa Cruz guilty only on
Count 2, and district court sentenced
them. Defendants appeal their convictions
and sentences.

DISCUSSION

I. Court-Appointed Interpreters

Salazar, Santa Cruz, and Guzman complain
that the district court abused its
discretion under the Court Interpreters
Act, 28 U.S.C. sec.sec. 1827, 1828
("CIA") and violated their Fifth and
Sixth Amendment rights by not providing
an additional court-appointed interpreter
to sit at the defense table, thereby
inhibiting their ability to
simultaneously communicate with counsel.

A. The Court Interpreters Act

The CIA relevantly provides:

The presiding judicial officer . . .
shall utilize the services of the most
available certified interpreter . . . in
judicial proceedings instituted by the
United States, if the presiding judicial
officer determines on such officer’s own
motion or on the motion of a party that
such party (including a defendant in a
criminal case) . . .

(A) speaks only or primarily a language
other than the English language . . . so
as to inhibit such party’s comprehension
of the proceedings or communication with
counsel . . . .

28 U.S.C. sec. 1827(d)(1). A defendant
entitled to an interpreter under sec.
1827(d) may waive this right "only if ap
proved by the presiding judicial officer
and made expressly by such individual on
the record after opportunity to consult
with counsel and after the presiding
judicial officer has explained to such
individual . . . the nature and effect of
the waiver." 28 U.S.C. sec. 1827(f)(1).
If the presiding judicial officer finds
under sec. 1827(d) that the appointment
of an interpreter is not necessary, "an
individual requiring the services of an
interpreter may seek assistance of the
clerk of court or the Director of the
Administrative Office of the United
States Courts in obtaining the assistance
of a certified interpreter." 28 U.S.C.
sec. 1827(e)(2). Further, the "capacity
for simultaneous interpretation services"
shall be provided in multi-defendant
criminal cases. 28 U.S.C. sec. 1828(a).

Throughout the entire trial in this
case, a court-appointed interpreter
simultaneously translated the proceedings
from English to Spanish through a
microphone that fed into headsets worn by
the defendants. During the government’s
case in chief, near the end of the cross-
examination of the third of its eight
witnesses by the last of four defense
attorneys, one of the defense attorneys
(the third to cross-examine this witness)
asked the court for a sidebar, which went
as follows:

MR. CARLSON [Salazar’s attorney]: It
really isn’t a problem, but my client--
because we have an interpreter here, my
client sometimes has questions for me and
wants to ask me certain things.

When I came back to my chair [after I
cross-examined this witness], he
indicated that he wanted to speak to me
before I finished.

I can’t understand anything he’s saying,
and the interpreter was being used at the
time.

Instead of interrupting the direct
examination--or the cross-examination of
Mr. Saltzman [Santa Cruz’ attorney], I
wanted to wait until I had a chance.

I was just wondering--and I don’t care
whether the Government wants to go ahead
and do their--any redirect they have and,
then, take a short break so I can talk to
my client and find out if there is any
other questions he has of this witness.

And I think that might be advisable for
all of the defendants.

MR. SALTZMAN: It might be good if he did
it when I’m done.

THE COURT: We will take a brief recess
now, okay.

Trial Tr. at 178-79. Then, before the
government’s fourth witness took the
stand, the following colloquy took place
between the district court and the
defense attorneys:

MR. CARLSON: Judge, one quick matter. .
. . [My client] has some concerns about
his ability to be able to communicate
with me during the course of the trial,
especially during the course of the
testimony that’s going on, because he is
unable to convey his thoughts to me as
witnesses are testifying.

He is very concerned that he’s not going
to be able to put his input into--and
fully advising me as to matters during
the testimony.
 We have--unfortunately--only one
interpreter here, and the interpreter is
interpreting for the Court as well as the
defendants.

And, additionally, there are three
defendants who require the services of an
interpreter. But my client is just having
some very severe problems and concerns
about the lack of ability to communicate
with me due to the language difficulty.

THE COURT: Okay. Do you have a
suggestion or, otherwise, I will tell you
what we will do.

MR. CARLSON: Judge, I would just like
there to be-- if your Honor has a better
way, that’s fine--some break in the
testimony both before cross-examination
begins, and then before cross-
examination--cross-examination ends, so
we can sit and try to get input from our
clients.

THE COURT: Okay.

MR. SALTZMAN: I would join in that
too, Judge.
THE COURT: Let’s do it this way then.
Your clients should take down their
notes, just as the jury does, take them
in Spanish, and then you can simply ask
for a few moments while the interpreter
reviews with you the notes.

I will be glad to give you that time.
There is no problem.

MR. CARLSON: That’s fine. Thank you,
Judge.

THE COURT: Okay.

Trial Tr. at 189-90.

Appellate counsel decries the "flawed
’solution’ devised by the district
court." However, it is clear from the
colloquy that the "flawed solution" was
not "devised" by the district court, but
rather was proposed by defense counsel.
Defense counsel asked the court for
breaks before cross-examination and near
the close of cross to use the interpreter
to confer with the defendants. Since
defense counsel did not actually request
that an additional court-appointed
interpreter be appointed to sit at the
defense table, it cannot be said that the
district court expressly denied the
defendants an additional interpreter to
aid them in simultaneously communicating
with their attorneys. What the district
court did do was agree to implement the
request of defense counsel.

What the defendants’ appellate counsel’s
argument really boils down to is that the
district court was obliged to sua sponte
appoint an additional interpreter because
criminal defendants have a right to have
an interpreter sit at the defense table
to effectuate simultaneous communication
with counsel. Counsel’s argument raises
at least two questions in this case: (1)
what are the statutory duties of a
district court when non-English speaking
defendants are before it?; and (2) what
right does a defendant in a criminal
trial have regarding an interpreter?

One of the purposes of the CIA is "to
ensure that the defendant can comprehend
the proceedings and communicate
effectively with counsel" through the
appointment of a certified interpreter.
United States v. Febus, 218 F.3d 784, 791
(7th Cir. 2000). However, the CIA was not
enacted to "create new constitutional
rights for defendants or expand existing
constitutional safeguards"; rather, the
CIA was enacted "to mandate the
appointment of interpreters under certain
conditions and to establish statutory
guidance for the use of translators in
order to ensure that the quality of the
translation does not fall below a
constitutionally permissible threshold."
United States v. Joshi, 896 F.2d 1303,
1309 (11th Cir. 1990) (citing H.R.Rep.
No. 1687, 95th Cong., 2d Sess. at 2-4
(1978), reprinted in, 1978 U.S.Code Cong.
& Admin.News 4652, 4652-54). We afford
district judges wide discretion in
assuring that the CIA’s purposes are
realized in their courtrooms. See Febus,
218 F.3d at 791-92.

District judges are entrusted with great
discretion because defendants do not have
an automatic right to an interpreter
under sec. 1827(d). Rather, a defendant
is only statutorily entitled to the
appointment of an interpreter if the
district court determines that the
defendant: (1) speaks only or primarily a
language other than the English language;
and (2) this fact inhibits their
comprehension of the proceedings or
communication with counsel. In making
this determination, a district court must
evaluate a "’variety of factors,
including defendant’s knowledge of
English and the complexity of the
proceedings and testimony . . . .’" Id.
at 791. District courts have a duty to
evaluate these factors when put on notice
that the defendant speaks only or
primarily a language other than English.
See 28 U.S.C. sec. 1827(d)(1). District
courts may be put on notice by motion of
the parties, or by the court’s own
recognition, when it is clear that the
defendant’s communication with the court
or counsel is inhibited by language. Once
a district court is on notice, it has a
duty to inquire as to whether the fact
that the defendant speaks only or
primarily a language other than English
inhibits his or her ability to comprehend
the proceedings and communicate with
counsel. Since the district court is best
positioned to make this evaluation, we
review the decision of whether to appoint
an interpreter and how to use the
interpreter for abuse of discretion. See
United States v. Rosa, 946 F.2d 505, 508
(7th Cir. 1991) (citing United States v.
Moya-Gomez, 860 F.2d 706, 740 (7th Cir.
1988)).

In this case, the district court
appointed an interpreter to ensure that
the defendants could comprehend the
proceedings through simultaneous
translation. There is also no question
that the interpreter was qualified and
adequately translated the proceedings.
The problem, according to the defendants,
was that since they could only
communicate with their attorneys via the
one court-appointed interpreter when
breaks in testimony were requested, they
were denied the opportunity to
simultaneously communicate with their
attorneys. Similar factual scenarios have
been encountered by other circuit courts.

For example, the Eleventh Circuit in
United States v. Bennett was presented
with the exact same issue as in this
case; specifically, whether the district
court had abused its discretion by
failing to supply individual court-
appointed interpreters to each of the
Spanish-speaking defendants in a multi-
defendant trial. See 848 F.2d 1134, 1139-
41 (11th Cir. 1988). The district court
appointed one interpreter who
simultaneously translated the proceedings
from English to Spanish through a
microphone that fed into headsets worn by
the defendants. See id. at 1140. The
defendants asked the district court for
the appointment of an individual
interpreter for each defendant so that
they could communicate with their counsel
at the defense table. See id. The
district court denied the request. See
id. Instead, the district court "offered
to recess the proceedings at any time
they needed to consult their attorneys
through the interpreter." See id. at
1141. The district court never denied any
requests for such a recess. See id. On
appeal, the Eleventh Circuit held that
"the district court’s appointment of a
single interpreter satisfied the
requirements of the [CIA]." Id. at 1140.

Further, in United States v. Sanchez,
the Sixth Circuit addressed a somewhat
similar situation. See 928 F.2d 1450,
1454-56 (6th Cir. 1991). The district
court had appointed two interpreters, one
for each defendant at the defense table
to aid in communicating with counsel. See
id. at 1454. At one point during the
trial, the district court borrowed one of
the interpreters to translate the
testimony of a Spanish-speaking
government witness. See id. This meant
that both defendants had to share the
other interpreter while the witness
testified. See id. On appeal, defendants
said that this prevented them "from
effectively communicating with counsel
during a critical stage of their trial."
Id. The court held that the CIA does not
require that each defendant be provided
with a personal interpreter. See id. at
1455. In so holding, the court stated:

There is nothing in the language of the
[CIA] or in the legislative history which
requires every defendant in a multi-
defendant criminal action be provided
with his own individual interpreter. To
the contrary, the [CIA] itself authorizes
the use of a single interpreter in multi-
defendant cases.

* * *

When utilizing a single interpreter
during a multi-defendant action, the
district court must always be cognizant
of the underlying purposes of the [CIA].
The district court must provide each
defendant the time and the ability to
confer effectively with counsel
throughout the proceedings.

Id. at 1455-54; see United States v. Yee
Soon Shin, 953 F.2d 559, 561 (9th Cir.
1992) (finding no error when district
court appointed one interpreter for two
defendants and holding that the CIA does
not require separate interpreters for
each defendant in multi-defendant cases);
United States v. Lim, 794 F.2d 469, 471
(9th Cir. 1986) (finding no error where
communication with counsel was by means
of notes and during breaks).

In the case at hand, the record reveals
that the district court was not notified
about the defendants’ communication
problems with counsel until defense
counsel first raised the concern during
the testimony of the third prosecution
witness. When the court was put on
notice, it was not an abuse of discretion
for the district court to agree with the
solution proposed by defense counsel
because it fulfilled the purpose of the
CIA. The solution ensured that the defen
dants could communicate with counsel,
albeit during breaks in testimony. A
district court certainly may decide that
the appointment of an additional
interpreter would be the preferable
solution in a case. But, the plain
language of the CIA does not mandate the
appointment of an additional interpreter
to sit at the defense table. The CIA
provides for simultaneous interpretation
of the proceedings, not simultaneous
interpretation of attorney-client
communications. As long as the district
court, when put on notice, adopts a
solution that removes the inhibition on
communication with counsel, we cannot say
that the district court abused its
discretion.

B. The Fifth and Sixth Amendments to the
United States Constitution

The United States Supreme Court has yet
to recognize the right to a court-
appointed interpreter as a constitutional
one. But, in 1907, the Supreme Court
stated: "One [claim] is that the court
erred in refusing to appoint an
interpreter when the defendant was
testifying. This is a matter largely
resting in the discretion of the trial
court, and it does not appear from the
answers made by the witness that there
was any abuse of discretion." Perovich v.
United States, 205 U.S. 86, 91 (1907). It
was not until 1970 that a circuit court
held that an indigent criminal defendant
who could not speak or understand English
was constitutionally entitled to an
interpreter. See Negron v. New York, 434
F.2d 386, 387 (2d Cir. 1970). In 1985,
our Circuit held in response to a
defendant’s challenge that the lack of an
interpreter denied him due process that
"a defendant in a criminal proceeding is
denied due process when: (1) what is told
to him is incomprehensible; (2) the
accuracy and scope of a translation at a
hearing or trial is subject to grave
doubt; (3) the nature of the proceeding
is not explained to [the defendant] in a
manner designed to insure his full
comprehension; or (4) a credible claim of
incapacity to understand due to language
difficulty is made and the district court
fails to review the evidence and make
appropriate findings of fact." United
States v. Cirrincione, 780 F.2d 620, 634
(7th Cir. 1985). We found that the
district court had properly determined
that the defendant could understand
English and that an interpreter had been
made available, but that the defendant
did not use the interpreter. See id. at
634. A handful of other cases from
various circuits have since also
recognized such a constitutional right.
See, e.g., United States v. Mayans, 17
F.3d 1174, 1179-81 (9th Cir. 1994)
(holding that the defendant’s Fifth
Amendment rights were violated when
interpreter withdrawn by court); Sanchez,
928 F.2d at 1456 (recognizing a
constitutional right to an interpreter,
but rejecting defendants’ Sixth Amendment
claim because there was no abuse of
discretion); Bennett, 848 F.2d at 1141
(recognizing a constitutional right to an
interpreter, but holding that "the
court’s use of a single interpreter [did
not] violate [the defendant’s] rights
under the sixth amendment"); United
States v. Carrion, 488 F.2d 12, 14-15
(1973) (recognizing a constitutional
right to an interpreter, but holding that
the district court did not abuse its
discretion in not appointing one because,
in part, defendant and counsel did not
explain the problem to the court); Yee
Soon Shin, 953 F.2d at 561 (recognizing a
constitutional right to an interpreter,
but finding that the district court’s
appointment of only one interpreter was
not an abuse of discretion because
defendants did not object). As under the
CIA, the appointment of an interpreter as
a constitutional matter is within the
district court’s discretion.

In this case, the defendants’ ability to
communicate with counsel was effectuated
by the interpreter adequately during
breaks in the testimony. See, e.g.,
Joshi, 896 F.2d at 1311 n.8 ("Even if the
district court had not acted prudently by
appointing a second translator, Joshi’s
sixth amendment rights would not have
been violated if the court had permitted
brief recesses to allow client-attorney
communications when requested."). The
district court never denied any requests
for breaks. While we do read the
Constitution as ensuring a defendant’s
right to communicate with his or her
counsel, we do not read the Constitution
as mandating the appointment of an
additional interpreter to sit at the
defense table. The solution adopted by
the district court to allow the
defendants to use the court-appointed
interpreter to communicate with their
counsel during breaks fulfilled the
defendants’ right to communicate with
counsel. The record reflects that the
defendants’ communication with counsel
was not constitutionally infirm.

II. Evidentiary Arguments

Salazar, Santa Cruz, and Guzman contend
that the district court abused its
discretion by allowing into evidence a
bank deposit receipt found in the Days
Inn hotel room, revealing that Santa Cruz
had deposited 34,000 pesos in Salazar’s
bank account in Mexico in September of
1998, about two months prior to the
charged crime. The government sought to
admit the receipt as evidence that Santa
Cruz and Salazar knew each other prior to
engaging in the charged crime. Further,
Salazar asserts that the district court
abused its discretion by allowing
evidence that he had made two prior trips
to the same area in Illinois--one in July
1998, where Salazar met Johnson and
Holguin at the same Days Inn and the
other in September 1998 where Salazar met
Johnson at the same hotel. The government
sought to admit the evidence to rebut
Salazar’s contention that he was
approached by a stranger in the hotel and
offered money to help unload Mexican
candy from a truck into a van. Defendants
contend that the receipt was offered to
show that the money was from a prior drug
transaction and evidence of the trips was
offered to show that they were really
trips to conduct drug transactions. They
say that there was no proof that these
pieces of evidence arose from criminal
activity, and thus 404(b) was violated
because these were neither prior crimes
nor prior bad acts.

The district court ruled that evidence
of the receipt and the trips was
admissible since it was intricately
related to the crimes charged and was
admissible under 404(b). We review for
abuse of discretion. See United States v.
Ward, 211 F.3d 356, 362 (7th Cir. 2000).

Generally, evidence of other crimes,
wrongs, or acts may be admissible if it
satisfies the four-part test developed
pursuant to Fed. R. Evid. 404(b). See
United States v. Asher, 178 F.3d 486, 492
(7th Cir. 1999). However, evidence of
other acts which are intricately related
to the facts of the case is admissible
without hindrance by Rule 404(b) as long
as the Rule 403 balancing test is
satisfied. See Ward, 211 F.3d at 362.
Evidence may be intricately related if it
helps complete the story of the charged
crime or tends to prove any element of
the crime. See United States v. Ryan, 213
F.3d 347, 350 (7th Cir. 2000); United
States v. Ramirez, 45 F.3d 1096, 1102
(7th Cir. 1995).

We do not see that this evidence is
"evidence of ’other acts’ within the
meaning of Fed. R. Evid. 404(b)."
Ramirez, 45 F.3d at 1102; see United
States v. Elder, 16 F.3d 733, 737 (7th
Cir. 1994). Defendants correctly state
that evidence of uncharged criminal
activity is admissible without regard to
Rule 404(b) if it is intricately related
to the facts of the case, and argue that
this evidence was not intricately related
because there was no proof that the money
deposited or the prior trips were related
to any sort of prior drug activity.
However, the receipt and evidence of the
prior trips were not introduced as
evidence of uncharged prior criminal
activity. Rather, the evidence served to
demonstrate that these men knew each
other well before the charged crime. This
evidence was particularly important since
they initially disputed knowing one
another. To show that these men knew one
another and had some form of prior
relationship, even if "noncriminal" in
nature, was certainly relevant to the
story of the case.

Furthermore, the probative value
outweighed any prejudice because the
evidence rebutted any defense suggestion
that these men were unaware of their
actions or did not know one another. The
defendants argue that the receipt and
evidence of the prior trips created an
impermissible inference that this
evidence was drug-related. We believe
that any possibility that such an
inference prejudiced defendants was cured
by the limiting instruction provided to
the jury. The instruction instructed the
jury to consider this evidence as only
evidence of intent, knowledge, or absence
of mistake. "This was not the
introduction of evidence concerning acts
wholly unrelated to the case which the
prohibition of character evidence
contained in Fed. R. Evid. 404(b) is
designed to prevent." Ramirez, 45 F.3d at
1103.

Therefore, we hold that the district
court did not abuse its discretion by
admitting this evidence, which, in any
event would have been harmless in light
of the overwhelming evidence of guilt.

III. Constructive Amendment to the
Indictment

Salazar further argues that the evidence
of the prior trips constituted a
constructive amendment to the indictment
by broadening the scope of the conspiracy
charged. See United States v. Cusimano,
148 F.3d 824, 828 (7th Cir. 1998).
However, "[t]he introduction of evidence
of pre-conspiratorial events does not by
itself create a constructive amendment to
the indictment." Id. This is particularly
true if the evidence is found to be
intricately related to the crime charged.
See id. (citing United States v. Spaeni,
60 F.3d 313, 316 (7th Cir. 1995)). As
Salazar did not raise this contention to
the district court, we review it for
plain error.

The jurors were given a limiting
instruction as to the prior trip evidence
and the time frame of the charged
conspiracy was expressly laid out to the
jury. With these safeguards in place, we
do not believe that the admission of this
evidence caused the jury to broaden the
scope of the crimes charged in rendering
its verdict. Thus, we hold that no plain
error occurred.

IV. U.S.S.G. sec. 3B1.2

Salazar and Santa Cruz argue that the
district court clearly erred by refusing
to grant them a sentence reduction under
U.S.S.G. sec. 3B1.2,/1 which states:
Based on the defendant’s role in the
offense, decrease the offense level as
follows:

(a) If the defendant was a minimal
participant in any criminal
activity, decrease by 4 levels.

(b) If the defendant was a minor
participant in any criminal activity,
decrease by 2 levels.

In cases falling between (a) and (b),
decrease by 3 levels.

A minimal participant is one who is
"plainly among the least culpable of
those involved in the conduct of a
group," while a minor participant is one
"who is less culpable than most other
participants." U.S.S.G. sec. 3B1.2, cmt.
n.1, 3. "As we have repeatedly held, the
relevant inquiry is whether the defendant
was a minor [or minimal] participant in
the crime for which he was convicted, not
whether he was a minor [or minimal]
participant in some broader conspiracy
that may have surrounded it." United
States v. Brown, 136 F.3d 1176, 1185-86
(7th Cir. 1998) (citing United States v.
Burnett, 66 F.3d 137, 140 (7th Cir.
1995)); see United States v. Isienyi, 207
F.3d 390, 392 (7th Cir. 2000); United
States v. Neeley, 189 F.3d 670, 684 (7th
Cir. 1999); United States v. Griffin, 150
F.3d 778, 787 (7th Cir. 1998). Since
determining one’s role in the offense is
a fact-based inquiry, we review the
district court’s decision for clear
error, which exists when, after reviewing
the evidence, we are left with the
definite and firm notion that a mistake
was made. See United States v. Hunte, 196
F.3d 687, 694 (7th Cir. 1999).

At sentencing, the district court
assigned Salazar and Santa Cruz a base
offense level of 38 and a criminal
history category of I, resulting in a
range of 235 to 293 months imprisonment.
The court set Salazar’s sentence on both
Counts 1 and 2 at 235 months, to run
concurrently, and Santa Cruz’ sentence at
235 months on Count 2. In setting Salazar
and Santa Cruz’ base offense level, the
district court held that each of the
defendants had possessed all of the 500
some kilograms of cocaine in the truck.
Thus, in denying each defendant a minor
or minimal role reduction, the court
found that since each had possessed all
of the cocaine, nobody was a less
culpable player./2 The court expressed
that while it believed that none of the
defendants were managers, supervisors,
organizers, or kingpins, it also believed
that none of them were merely minimal or
minor participants. See Sentencing Tr. at
28, 47.

"When no conduct of other participants
in a criminal scheme is attributed to a
defendant for purposes of sentencing, our
cases hold that he is not entitled to a
sentencing discount because he is a minor
or minimal participant in some larger
criminal activity of which the conduct
for which he is being punished is a
part." United States v. Cruz, 233 F.3d
492, 493 (7th Cir. 2000) (citing Almanza,
225 F.3d at 846; United States v. Hamzat,
217 F.3d 494, 497 (7th Cir. 2000);
Isienyi, 207 F.3d at 392). Almanza says
that a sentencing discount under U.S.S.G.
sec. 3B1.2 may be possible if a defendant
is charged with and convicted of multiple
transactions in a conspiracy and he or
she only participated in some of them,
but not all, or a reduction may be
possible if a defendant is charged in a
conspiracy, whether consisting of one or
many transactions, and he or she only
played a small role (such as a "lookout")
in the transaction(s). See 225 F.3d at
847. Defendants argue that this latter
possibility applies to them.

Salazar and Santa Cruz contend that the
court’s decision was clearly erroneous
because their role in the offense was
small; they were just "cogs in a wheel."
Defendants ask that the 500 some
kilograms of cocaine be divvied up and
that only the amount of cocaine that they
personally unloaded from the truck ought
to be attributed to them for sentencing
purposes. They argue that they were
charged with all of the group’s conduct
even though they only moved the boxes
around in the trailer and only unloaded
one box before they were arrested. They
point out that they were not involved in
driving the truck up from Texas (which
was Johnson’s job), nor was it their
responsibility to drive the van away
(which was Guzman’s job). They liken
their role more like that of the
defendant in Hunte. In Hunte we remanded
to the district court to enter a sentence
reduction for at least minor and possibly
minimal participation for a defendant in
a drug distribution group who helped hide
the group’s activities by closing the
blinds and registering for a motel room,
but who was neither a courier nor a
helper in loading and unloading the
drugs. See 196 F.3d at 693-94.

But this case is different. We agree
with the district court that Salazar and
Santa Cruz’ roles in the offense were
more culpable than they have argued. See
United States v. Kerr, 13 F.3d 203, 206
(7th Cir. 1993) (explaining that one who
plays a lesser role than others is not
necessarily a minor participant). The
district court found that all of the
defendants exercised total control over
all of the cocaine and thus were all
equally culpable for it. Furthermore, no
additional relevant conduct beyond the
drugs involved in this case was
attributed to the defendants. After
reviewing the record, we find that the
district court did not clearly err in
denying Salazar and Santa Cruz a
mitigating role adjustment.

V. Anders Brief

Defendant Johnson’s appointed appellate
attorneys move to withdraw under Anders
v. California, 386 U.S. 738 (1967),
because they believe that no nonfrivolous
issues for appeal exist. Johnson was
notified that he could respond to the
Anders brief pursuant to Circuit Rule
51(b), but he did not. Since the Anders
brief is facially adequate, we review
only the issues it raises. See Febus, 218
F.3d at 797 (citing United States v.
Tabb, 125 F.3d 583, 584 (7th Cir. 1997)
(per curium)). Counsel considered
whether: (1) the district court erred in
admitting into evidence prior bad acts,
Johnson’s affidavit filed at his
preliminary hearing, and the government’s
expert testimony; (2) Johnson was denied
a fair trial because he wore a prison
jumpsuit throughout the trial; (3) the
evidence was sufficient; and (4) any
errors in sentencing existed. Upon
examination of the record and the law, we
find ourselves in full agreement with
counsel that these grounds for appeal are
frivolous. See id. (quoting United States
v. Wagner, 103 F.3d 551, 553 (7th Cir.
1996)). Therefore, we grant counsel’s
motion to withdraw from the case and
dismiss Johnson’s appeal.

CONCLUSION

The district court’s judgment as to all
issues raised is hereby AFFIRMED.

/* Appeal No. 99-3902 was submitted for decision
without oral argument.

/1 A joint brief was submitted by Guzman, Santa
Cruz, and Salazar, in which they presented a
general sketch of the law and a general argument
for this sentence reduction. A footnote in the
joint brief stated that the "individual arguments
of the defendants as to the particular circum-
stances which demonstrate their minimal role in
the group’s conduct will be made in their supple-
mental briefs." Only Salazar and Santa Cruz
submitted supplemental briefs, which presented
specific arguments on this issue. Guzman relied
on the generalities in the joint brief, which is
not enough because it did not apply the specific
facts regarding his involvement in the offense.
We will not construct Guzman’s argument for him,
and thus we hold that his claim under U.S.S.G.
sec. 3B1.2 is waived. See DeSilva v. DiLeonardi,
181 F.3d 865, 867 (7th Cir. 1999) ("A brief must
make all arguments accessible to the judges,
rather than ask them to play archaeologist with
the record.").

/2 The district court acknowledged that the jury had
acquitted Santa Cruz of the conspiracy charge and
only convicted him of possession. Yet, the court
said the following to him in denying a reduction:
"as to the count with which you were found guilty
[possession], you have equal culpability with the
other two individuals [Salazar and Guzman].
Therefore, your role in the offense is neutral,
resulting in neither an enhancement [for being an
organizer] nor a reduction [for being a minor or
minimal participant]." Sentencing Tr. at 47.