GABRIEL V. MENDOZA, Petitioner-Appellant,
UNITED STATES OF AMERICA, Respondent-Appellee
Argued April 22, 2014
[Copyrighted Material Omitted]
Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. Nos. 3:12-cv-00072 & 3:12-cv-00073 -- Robert L. Miller, Jr., Judge.
For Gabriel v. Mendoza, Petitioner - Appellant (13-3195, 13-3196): Roxanne Mendez Johnson, Attorney, Law Office of Roxanne Mendez Johnson, Valparaiso, IN.
For United States of America, Respondent - Appellee (13-3195, 13-3196): William T. Grimmer, Attorney, Office of The United States Attorney, South Bend, IN.
Before POSNER, WILLIAMS, and TINDER, Circuit Judges.
Tinder, Circuit Judge
Gabriel Mendoza was sentenced to multiple terms of life imprisonment after he was convicted of a drug conspiracy and other drug offenses in the United States District Court for the Northern District of Indiana. Mendoza appealed, challenging the sufficiency of the evidence as to the conspiracy conviction and his sentence, and we affirmed. United States v. Mendoza, 401 F.Appx. 128 (7th Cir. 2010). Mendoza then petitioned for relief from his convictions under 28 U.S.C. § 2255, claiming that he was denied due process when the district court moved one of his Spanish-speaking interpreters from the defense table to interpret for a Spanish-speaking witness at trial. He also argued that his trial counsel provided ineffective assistance in failing to object to this interpreter arrangement and failing to translate discovery and adequately review it with him. The district court held an evidentiary hearing at which Mendoza, his trial counsel, and the three interpreters who participated in the trial all testified. Following the hearing, the court denied Mendoza's § 2255 petition, concluding that he was not deprived of due process nor provided ineffective assistance of counsel. We affirm.
Mark Lenyo was appointed as counsel to represent Mendoza in the district court. Lenyo has been a practicing attor-ney since 1984, has represented thousands of clients (both criminal and civil) over the years, and has extensive federal criminal defense experience. Mendoza speaks only Spanish and required an interpreter throughout the court proceedings (although he may understand some spoken English, as we will briefly explain below). Lenyo does not speak or understand much Spanish. Shortly after Lenyo's appointment, the court received a pro se letter from Mendoza asking for " copies of everything in Spanish." The court declined to take action on the pro se letter because Mendoza was represented by counsel.
The government produced thousands of pages of discovery in Mendoza's criminal case. Mendoza requested that Lenyo have all discovery translated into Spanish. Given the volume of discovery and based on his professional judgment, Lenyo viewed the request as impractical, if not impossible, and did not have any of the discovery translated. However, he spent more than twenty-one hours reviewing the discovery, summarized the discovery, and later had the court-appointed interpreter, Susannah Bueno, orally translate the summary for Mendoza.
Lenyo met with Mendoza five times before trial, for a total of more than six hours, at the county jail where Mendoza was being held. During these meetings, they discussed the case, including such matters as defense strategy, and reviewed discovery. Bueno was present at each meeting to interpret for Mendoza. Lenyo also met with Mendoza and discussed the case before each of the five court appearances before trial and during each of the six days that Mendoza was on trial. And Lenyo arranged for Mendoza to view the physical evidence against him at the U.S. Attorney's office several weeks prior to the start of trial. Bueno was present at the time to interpret the agents' description of
the evidence so Mendoza could understand it.
On the first day of trial, Mendoza moved for new counsel. He complained that Lenyo had not had all the discovery documents translated into Spanish. Lenyo told the district court that he had advised Mendoza that given " the large volume of discovery," he had decided that not all of it would be translated from English into Spanish. Lenyo further explained to the court that given the " sheer volume" of the paperwork involved, it would have been impractical if not impossible to translate each document and review it with Mendoza. After also hearing from the prosecutor, the district court decided that Mendoza's request for new counsel was untimely, that Lenyo had diligently prepared for trial and that there was no breakdown in communication between Lenyo and Mendoza. Based on these determinations, the court denied Mendoza's motion for new counsel.
Two of three interpreters worked each day of trial, rotating on the various days of trial: Bueno, Ana Maria Toro-Greiner, and Julia Kurtz. The second day of trial, Bueno and Toro-Greiner were the interpreters. When Aurora Virruta, Mendoza's common law wife was called to testify, the prosecutor advised the court that Virruta did not speak English and requested a bench conference. The court said, " We don't have interpreters for witnesses," and " we'll have to move our interpreter over for that purpose." Lenyo did not object. Toro-Greiner was moved to be near the witness stand to interpret for Virruta on direct examination; Bueno also interpreted for Virruta on cross and redirect. The trial transcript does not indicate where Bueno was located during Virruta's direct examination; nor does ...