In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1545

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.

____________

ARGUED MAY 8, 2008—DECIDED SEPTEMBER 11, 2008

____________

Before BAUER, MANION, and WILLIAMS, Circuit Judges.

MANION, 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 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,
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 discovered $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.
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 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
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 codefendant 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 Robertson’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
No. 07-1545 5

While we use “Ballard” to refer to Michelle Ballard, we note 1

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.

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. Upon searching the residence, police 1

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-
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 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
No. 07-1545 7

In addition to the two arguments considered here, Zaragoza 2

raised an ineffective assistance of counsel claim arguing that

he was prejudiced by his attorney’s delay in raising his inability 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.”).

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, Zaragoza was

sentenced to 300 months’ imprisonment, followed by

ten years’ supervised release. Zaragoza appeals his conviction.

II.

Zaragoza presents two issues on appeal. First, he argues 2

that the evidence was insufficient to support a finding
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 proceedings based on a language barrier. In reviewing the

sufficiency of the evidence underlying a criminal conviction, “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 agreement regarding a separate criminal object other than their

immediate “buy-sell” transactions. “The essence of conspiracy 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 buyerseller agreement existed include “the length of the affiliation, 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 sufficient 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 distributors 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 inference 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 Robertson, 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 conspiracy. 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. Dealings of this duration are similar to or exceed periods

we have previously found sufficient to indicate the existence of a conspiracy, and they supported such a finding

here. See, e.g., Fuller, 532 F.3d at 663 (noting that a fivemonth 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 supported 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 defendant’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 proceedings 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 testimony.” Id. We review the district court’s final determination 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 discretion 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 observations at trial, to continue with the proceedings. First, the

court noted that Zaragoza appeared to be receiving

clarification from the interpreters directly. More importantly, the court observed Zaragoza speaking English with

his attorney, and numerous witnesses had testified that
No. 07-1545 13

Zaragoza’s objection to the use of an uncertified interpreter 3

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.

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 selection by two federally certified interpreters. The district 3

court, therefore, had sufficient information upon which

to base its decision to continue with the proceedings

without changing the interpreters. Under these circumstances, 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
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 AFFIRMED.

9-11-08