In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1545
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R AFAEL Z ARAGOZA,
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.
____________
A RGUED M AY 8, 2008—D ECIDED S EPTEMBER 11, 2008
____________
Before B AUER, M ANION, and W ILLIAMS, Circuit Judges.
M ANION, Circuit Judge. 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 num-
ber 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,
2 No. 07-1545
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 with-
out prejudice.
No. 07-1545 3
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 approxi-
mately 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
4 No. 07-1545
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 pay-
ment 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
No. 07-1545 5
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.1 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 Septem-
1
While we use “Ballard” to refer to Michelle Ballard, we note
that her father, Tony Ballard, is a co-defendant in this case.
He was arrested on November 4, 2004, for possession of an
ounce of meth he bought from Zaragoza. Tony Ballard was
eventually charged with possession of meth with intent to
distribute, to which he pleaded guilty. His other daughter,
Patricia, was the pregnant juvenile traveling with Ortiz when
he was arrested in Nebraska.
6 No. 07-1545
ber 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 feder-
ally 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 hun-
dred 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
No. 07-1545 7
attorney in English during trial, and that numerous
witnesses had testified that they communicated with
Zaragoza in English. Later that day, after the trial con-
cluded, 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, Zaragoza was
sentenced to 300 months’ imprisonment, followed by
ten years’ supervised release. Zaragoza appeals his con-
viction.
II.
Zaragoza presents two issues on appeal.2 First, he argues
that the evidence was insufficient to support a finding
2
In addition to the two arguments considered here, Zaragoza
raised an ineffective assistance of counsel claim arguing that
he was prejudiced by his attorney’s delay in raising his inabil-
ity to understand the interpreters. However, he withdrew this
claim at oral argument. See United States v. Williams, 272 F.3d
845, 854 (7th Cir. 2001) (“We believe these [ineffective assistance
of counsel] claims are best brought in a collateral proceeding
where the record can be fully developed, and not on direct
appeal when most of the pertinent information is not yet in
the record.”).
8 No. 07-1545
that he engaged in a conspiracy to possess meth with the
intent to distribute it. Second, Zaragoza contends that
he was denied due process because the district court
failed to make the required inquiry after being informed
that he was having difficulty understanding the pro-
ceedings based on a language barrier. In reviewing the
sufficiency of the evidence underlying a criminal convic-
tion, “we ask only if, after viewing all of the evidence in
a light most favorable to the government, and drawing
all reasonable inferences therefrom, a rational trier of fact
could not have found the essential elements of the crime,
beyond a reasonable doubt.” United States v. Wantuch, 525
F.3d 505, 519 (7th Cir. 2008). This presents the defendant
making such an argument with “a daunting task.” Id.
In making the argument, Zaragoza does not deny that
he and his codefendants were involved in selling meth.
Rather, he argues that their dealings involved no agree-
ment regarding a separate criminal object other than their
immediate “buy-sell” transactions. “The essence of con-
spiracy is, of course, an agreement to commit a crime.”
United States v. Thomas, 284 F.3d 746, 751 (7th Cir. 2002).
However,
[w]hen the sale of some commodity, such as illegal
drugs, is the substantive crime, the sale agreement
itself cannot be the conspiracy, for it has no separate
criminal object. What is required in such a case is an
agreement to commit some other crime beyond the
crime constituted by the [sale] agreement itself.
Id. at 751-52. In Thomas, in addition to the initial sale, the
separate crime was the further distribution of the sizable
No. 07-1545 9
amount of crack the purchaser bought and then sold in
smaller quantities to her own customers. Factors to be
considered in weighing whether more than a mere buyer-
seller agreement existed include “the length of the affilia-
tion, the established method of payment, standardized
transactions, and a level of mutual trust.” United States v.
Fuller, 532 F.3d 656, 662 (7th Cir. 2008). “If enough of these
factors ‘are present and point to a concrete, interlocking
interest beyond individual buy-sell transactions,’ we ‘will
not disturb the fact-finders [sic] inference that at some
point, the buyer-seller relationship developed into a
cooperative venture.’ ” Id. (citation omitted).
The evidence presented at Zaragoza’s trial was suf-
ficient to establish the sort of “interlocking interests”
indicative of a conspiracy to distribute meth. First, there
was testimony that Zaragoza depended on Ortiz and
Montes to travel to California to obtain the meth, and then
distribute it to the next level of dealers in Indiana. An
even stronger example of interdependence among the
codefendants was the fact that Zaragoza would often not
get paid for the meth he sold to the next level of distribu-
tors until they made their sales. Ortiz and Robertson
testified that they held on to the money they received
from meth sales until it “added up,” at which point they
paid Zaragoza. While Ballard’s testimony on this point
was not as clear as that of Ortiz and Robertson, an infer-
ence can be drawn that she and Montes were also being
fronted meth, and then making payments once they sold
enough to pay back Zaragoza. Zaragoza’s dependence
on the success of distributors like Robertson, Ballard, and
Montes was sufficient evidence for the jury to conclude
10 No. 07-1545
that the codefendants had agreed to participation in a
meth distribution conspiracy, and not merely a series of
buy-sell agreements. See United States v. Torres-Ramirez,
213 F.3d 978, 982 (7th Cir. 2000) (“A dealer who ‘fronts’
drugs to his customer depends for payment on the
success of the resale venture, making it possible to infer
that the dealer has agreed to participate in it: the dealer
becomes at least a debt investor in the redistribution
venture, if not an equity investor.”).
In addition to these fronting transactions, there was a
regularity of payments indicating an arrangement more
substantial than mere buy-sell agreements. First, Ortiz
testified that Zaragoza paid him regular amounts for his
efforts—$1,000 for trips to California, and $300 per week
for distributing the meth in Indiana. Next, Robertson
testified that in paying Zaragoza, he wrapped the bills in
uniform, easily counted increments. And when Zaragoza
was arrested on September 6, 2004, police found $5,000
in hundred dollar bills, wrapped as described by Robert-
son, in the trunk of his car. The regular form of payment
made to Zaragoza, as well as the regular salary-like
amounts he paid Ortiz for his duties are the kind of
“standardized transactions” upon which the jury could
have relied in finding that Zaragoza engaged in a con-
spiracy. See Fuller, 532 F.3d at 662.
Next, the testimony at trial showed that Zaragoza
sold meth to his codefendants over a considerable period
of time. Eschman’s arrest and the subsequent discovery
of cash and a handgun at Zaragoza’s house support a
finding that Zaragoza was involved in meth distribution
No. 07-1545 11
at least since February 2003. Robertson testified that he
bought meth from Zaragoza regularly during the nine
months prior to his arrest in October 2004. Ortiz was also
arrested in October 2004, and testified that he had been
acting as a courier for Zaragoza since late 2003 or early
2004. Finally, Ballard was arrested in December 2004, and
she testified that she and Montes had been dealing meth
sold to them by Zaragoza since the middle of 2003. Deal-
ings of this duration are similar to or exceed periods
we have previously found sufficient to indicate the exis-
tence of a conspiracy, and they supported such a finding
here. See, e.g., Fuller, 532 F.3d at 663 (noting that a five-
month affiliation between a cocaine dealer and buyer
supported the jury’s finding); United States v. Gee, 226
F.3d 885, 894 (7th Cir. 2000) (concluding that there was
no basis to reverse the jury’s finding where standardized
transactions occurred over thirteen months).
The fronting of meth by Zaragoza, the standardized
manner in which he made and received payment, as
well as the duration of the codefendants’ relationships
indicated that the parties had gone beyond engaging in
mere buy-sell transactions. Therefore, the evidence sup-
ported a finding that Zaragoza conspired with his
codefendants to engage in a meth distribution operation.
Accordingly, we find no basis upon which to disturb the
jury’s finding.
Regarding Zaragoza’s due process argument, we note
that under the Court Interpreters Act, 28 U.S.C. § 1827, a
defendant is entitled to the assistance of an interpreter
when he “speaks only or primarily a language other than
12 No. 07-1545
the English language.” 28 U.S.C. § 1827(d)(1)(A). A defen-
dant’s entitlement to an interpreter is established by
determining whether the defendant “(1) speaks only or
primarily a language other than the English language; and
(2) this fact inhibits their comprehension of the proceed-
ings or communication with counsel.” United States v.
Johnson, 248 F.3d 655, 661 (7th Cir. 2001). The district court
has a duty to evaluate these factors when put on notice
as to their relevance, and it should normally undertake
such considerations as the “defendant’s knowledge of
English and the complexity of the proceedings and testi-
mony.” Id. We review the district court’s final determina-
tion on the appointment and use of interpreters for abuse
of discretion because the district court “is in the best
position to evaluate the need for and the performance of
interpreters.” United States v. Sandoval, 347 F.3d 627, 632
(7th Cir. 2003).
Zaragoza argues that the district court abused its discre-
tion because, once presented with the possibility that he
was not understanding the proceedings, it failed to make
an inquiry into the extent to which his comprehension of
the proceedings was compromised. However, while the
district court may not have inquired directly of Zaragoza
regarding his comprehension, the record shows that the
court was sufficiently informed about Zaragoza’s level of
understanding of the proceedings, based on its observa-
tions at trial, to continue with the proceedings. First, the
court noted that Zaragoza appeared to be receiving
clarification from the interpreters directly. More impor-
tantly, the court observed Zaragoza speaking English with
his attorney, and numerous witnesses had testified that
No. 07-1545 13
during their dealings with Zaragoza, they spoke English.
For example, Robertson, Michelle Ballard, and Tony
Ballard all testified that they communicated with Zaragoza
in English. Officer Joseph Waters, who arrested Zaragoza
on September 6, 2004, also testified that he communicated
with Zaragoza only in English.
The court was presented with Zaragoza’s possible
failure to comprehend on the last day of a four-day trial
after observing him communicate with the interpreters,
communicate with his attorney in English, and after
hearing testimony that Zaragoza spoke English in his
dealings outside of court. Furthermore, Zaragoza had
been assisted at every stage of trial following jury selec-
tion by two federally certified interpreters.3 The district
court, therefore, had sufficient information upon which
to base its decision to continue with the proceedings
without changing the interpreters. Under these circum-
stances, the court’s decision not to make any further
inquiry of Zaragoza was not an abuse of discretion.
III.
The jury was presented with sufficient evidence to
support a finding that Zaragoza engaged in a conspiracy to
distribute meth. Additionally, because the district court
3
Zaragoza’s objection to the use of an uncertified interpreter
at sentencing is likewise unavailing because, as we have
previously noted, the Court Interpreters Act does not require
use of a certified interpreter. See Sandoval, 347 F.3d at 632.
14 No. 07-1545
had sufficient information to make the determination
provided for under the Court Interpreters Act, 28 U.S.C.
§ 1827, its decision not to make further inquiry of Zaragoza
was not an abuse of discretion. Accordingly, Zaragoza’s
conviction is A FFIRMED.
9-11-08