UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 98-4843

JUAN RAMIREZ MATA,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-98-206)

Submitted: June 15, 1999

Decided: June 25, 1999

Before MURNAGHAN, HAMILTON, and LUTTIG,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

James F. Sumpter, JAMES F. SUMPTER, P.C., Richmond, Virginia,
for Appellant. Helen F. Fahey, United States Attorney, N. George
Metcalf, Assistant United States Attorney, M. Hannah Lauck, Assis-
tant United States Attorney, Richmond, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Juan Ramirez Mata appeals his conviction for possession of mari-
juana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)
(1994) and 18 U.S.C. § 2 (1994). We find no error and affirm.

I

As part of an undercover operation, Sam Cross, a paid police infor-
mant who speaks fluent Spanish, conducted drug deals with Gustav
Espinoza in Kearnsville, North Carolina. In January 1998, Espinoza
asked Cross to pick up a large load of marijuana in Atlanta. Cross and
an undercover police officer picked up four duffel bags and were
directed by the Atlanta contact to deliver them to Richmond, Virginia.
Once in Richmond, Cross and the officer paged the number provided
by the Atlanta contact. The person paged called back, and a meeting
was set up in a nearby parking lot. Mata arrived soon thereafter and
directed Cross and the officer to drive to a house where Mata and
another man unloaded the bags from the car. After returning to the
parking lot, Mata paid Cross $500 as had been promised by the
Atlanta contact. Mata was arrested as he was leaving the lot, and a
pager with the number given to the informant by the Atlanta contact
was found on his person.

Mata admitted that he picked up the bags and paid the informant,
but alleged he did so only as a favor to a man named David and that
he did not know the contents of the bags. The jury convicted Mata of
the charged offense. On appeal, Mata contends that the trial court
erred in refusing to give one of his proffered jury instructions and that
the interpreter services afforded him during trial were inadequate.

II

There was no dispute about the quantity of marijuana in the duffel
bags, and the district court instructed the jury it could "consider that

                     2
possession of large quantities of an illegal drug supports an inference
of intent to distribute." (J.A. 199). Mata's counsel elicited testimony
that no evidence of distribution, such as scales or packaging materials,
was discovered at the house to which Mata delivered the duffel bags.
Mata concedes that the jury was properly permitted to infer an intent
to distribute from the weight of the drugs alone. He contends, how-
ever, that the court abused its discretion in refusing to give his pro-
posed instruction, which reads in relevant part as follows:

          Basically, what you are determining is whether the drugs
          in the defendant's possession were for his personal use or
          for the purpose of distribution. Often it is possible to make
          this determination from the quantity of drugs found in the
          defendant's possession.

          The possession of a large quantity of narcotics does not
          necessarily mean that the defendant intended to distribute
          them. On the other hand, a defendant may have intended to
          distribute narcotics even if he did not possess large amounts
          of them. Other physical evidence, such as paraphernalia for
          the packaging or processing of drugs, can show such an
          intent. There might be evidence of a plan to distribute. You
          should make your decision whether the defendant intended
          to distribute the narcotics in his possession from all the evi-
          dence presented.

(J.A. 10-11) (emphasis added). Mata argues that due process requires
that the jury should have been specifically told that it could consider
"other physical evidence" or "evidence of a plan to distribute" in its
deliberations.1
_________________________________________________________________
1 We conclude that this issue is distinct from any issue regarding a
lesser-included offense instruction. Even if such an issue were properly
before the court on appeal, it is meritless. A defendant has a right to an
instruction on a lesser-included offense "if the evidence would permit a
jury rationally to find him guilty of the lesser offense and acquit him of
the greater." Keeble v. United States, 412 U.S. 205, 208 (1973). In the
context of drug distribution cases, we have held that such an instruction
must be given "unless, as a matter of law, the evidence would `rule out
the possibility of a finding of simple possession,[because the quantity of

                    3
We will not reverse on the ground that the trial court refused to
give an instruction requested by a defendant unless the instruction:
"(1) was correct; (2) was not substantially covered by the court's
charge to the jury; and (3) dealt with some point in the trial so impor-
tant that failure to give the requested instruction seriously impaired
the defendant's ability to conduct his defense." United States v.
Queen, 132 F.3d 991, 1000 (4th Cir. 1997) (citations omitted). We
conclude the court did not abuse its discretion based upon these
criteria.

Mata's requested instruction is correct; a jury is free to consider
any evidence or lack of evidence regarding drug distribution equip-
ment or a distribution network. However, the jury was properly
instructed that it should "carefully and impartially consider all the evi-
dence in the case." (J.A. 190). Indeed, in closing argument to the jury,
Mata's counsel noted the lack of the usual indicia of a distribution
network, such as guns and baggies. The court was not required to spe-
cifically list every aspect of the evidence that the jury could consider.

Mata's only defense was that he was unaware that the bags con-
tained a controlled substance. This defense, coupled with his conces-
_________________________________________________________________

drugs found was] so huge as to require that the case proceed on the the-
ory that the quantity conclusively has demonstrated an intent to distrib-
ute.'" United States v. Baker, 985 F.2d 1248, 1259 (4th Cir. 1993)
(quoting United States v. Levy, 703 F.2d 791, 793 n.7 (4th Cir. 1983)).
This is precisely what the district court ruled in Mata's case: "And let me
tell you [counsel] now, because of the quantity of drugs involved in here,
you won't get a lesser included offense. If the jury--because there is no
way anybody gets two hundred kilos or hundred kilos for their own per-
sonal habits." (J.A. 175). Mata's counsel conceded the point during clos-
ing argument to the jury: "Obviously, you can't use 210 pounds. You
have to get rid of it." (J.A. 186). Moreover, there was no "affirmative
evidence unrelated to drug quantity from which the[jury] could have
reasonably inferred that the defendant possessed the drugs solely for per-
sonal use." United States v. Wright, 131 F.3d 1111, 1115-16 (4th Cir.
1997), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3782 (U.S. June 8, 1998)
(No. 97-9034). Given the undisputed facts and the defendant's conces-
sion, there was no possibility of a reasonable inference of simple posses-
sion.

                     4
sion that the large quantity of drugs precluded an instruction on the
lesser-included offense of simple possession, supports a conclusion
that rejection of the instruction did not impair Mata's defense. We
therefore find no abuse of discretion in the court's refusal of the prof-
fered instruction.

III

In a motion to vacate the verdict, Mata contended that Spanish
interpreters at his trial were unable to either effectively interpret the
proceedings for him during trial or to translate his testimony for the
court. In an affidavit attached to the motion, Mata's lawyer averred
that he only discovered the problem when one of the interpreters
admitted she was unable to translate some of the legal terms used at
the trial.

The court found that it appeared Mata did not receive continuous
word-for-word translation during the trial as required by statute. Nev-
ertheless, the court denied the motion based upon three factors: the
lack of objection to the quality of the translation during trial, the over-
whelming evidence of guilt, and the defendant's"passing" familiarity
with the English language. We find no error in this ruling.

Mata's first language is Spanish. Under the Court Interpreters Act,
28 U.S.C.A. § 1827 (West 1994 & Supp. 1999), a criminal defendant
is entitled to an interpreter if he speaks "only or primarily a language
other than the English language." Because the trial court is best posi-
tioned to evaluate the need for an interpreter, a decision to refuse to
appoint one is reviewed for abuse of discretion, see United States v.
Coronel-Quintana, 752 F.2d 1284, 1291 (8th Cir. 1985), and the trial
court must be given "wide discretion" in evaluating the adequacy of
the interpreter's efforts. Valladares v. United States, 871 F.2d 1564,
1566 (11th Cir. 1989). "The ultimate question is whether any inade-
quacy in the interpretation made the trial fundamentally unfair." Id.
(internal quotation omitted).

The court's finding that Mata had at least a marginal understanding
of English is supported by the record. Some of the conversation
between Mata and the undercover police officer, which was recorded
on tape, was in English. In addition, Mata sometimes responded to

                     5
questions at trial in English before the question was translated by the
interpreter.

The lack of objection during trial weighs heavily against granting
relief to Mata. See Valladares, 871 F.2d at 1566 ("To allow a defen-
dant to remain silent throughout trial and then, upon being found
guilty, to assert a claim of inadequate translation, would be an open
invitation to abuse."). Defense counsel's explanation that he only
found out about the possible translation problems after trial is not cor-
roborated by any evidence from Mata or the interpreters. Moreover,
there is no particularized showing that the allegedly deficient transla-
tion prejudiced Mata in any way. See, e.g., United States v. Gomez,
908 F.2d 809, 811 (11th Cir. 1990) (explaining how specific translat-
ing error resulted in prejudice to the defendant).

The trial court also noted the overwhelming evidence of guilt. Mata
was arrested after he (1) was paged at the number provided by the
Atlanta drug dealer; (2) received four large duffel bags containing 210
pounds of marijuana; and (3) paid the informant $500 for the delivery.
In light of this evidence, we are confident that any translation prob-
lems that may have occurred did not render the trial"fundamentally
unfair." United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir. 1990).
We thus find no reversible error in the trial court's denial of Mata's
motion for a new trial.2 We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.

AFFIRMED
_________________________________________________________________
2 Although Mata filed a "Motion to Vacate the Verdict," we agree with
the Government that it is properly construed as a motion for a new trial
under Rule 33 of the Federal Rules of Criminal Procedure.

                     6
