                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2727
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       *     Appeal from the United States
      v.                               *     District Court for the Western
                                       *     District of Missouri.
                                       *
Jose Maria Sanchez-Godinez,            *
                                       *
                                       *
            Defendant - Appellant.     *
                                  ___________

                            Submitted: December 13, 2005
                                Filed: April 14, 2006
                                   ___________

Before MELLOY, COLLOTON, and BENTON, Circuit Judges.
                          ___________

MELLOY, Circuit Judge.

      Jose Maria Sanchez-Godinez was found guilty by a jury of possession of
marijuana with intent to distribute. The district court1 imposed a sentence of seventy
months. Sanchez-Godinez appeals, challenging the district court’s ruling on a hearsay

      1
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
objection to out-of-court statements. He also alleges that the trial court erred in
permitting the prosecutor to define “distribution” in his closing argument when that
term was not defined by the jury instructions. We affirm.

I. Background

        On May 22, 2004, Missouri State Highway Patrol Canine Officer Gary Braden
stopped a U-Haul truck being driven by Sanchez-Godinez after observing Sanchez-
Godinez driving seventy-eight miles per hour in a seventy miles per hour zone. At the
time of the stop, Sanchez was traveling eastbound on Interstate 44 in Missouri. The
truck rental agreement stated that Sanchez-Godinez had picked up the truck in Los
Angeles, California, and was to return it in Kansas City, Missouri, on May 26, 2004.
Sanchez-Godinez told Braden that he was in the process of moving from Los Angeles
to St. Louis. Sanchez-Godinez appeared nervous and provided conflicting responses
to some of the trooper’s general inquiries about his purpose and route of travel. In the
cab of the truck, Braden saw discarded food containers, personal belongings, and two
cellular telephones with chargers. These indicators led Braden to believe that
Sanchez-Godinez was transporting contraband.

       Braden issued Sanchez-Godinez a warning for speeding and advised him that
he was free to leave. After doing so, Braden obtained permission to search the truck.
Sanchez-Godinez was unable to provide a key to the lock that secured the rear bay
door. Braden used a narcotics-trained canine to sniff the exterior of the truck.
Braden’s canine alerted him to the possible presence of drugs. The truck was escorted
to the Highway Patrol’s Troop D Headquarters in Springfield, Missouri. Officers
removed the lock, searched the truck, and found approximately 542 kilograms of
marijuana. Officers also found dryer sheets and baking soda, which are commonly
used to mask the odor of marijuana. Sanchez-Godinez was then arrested and given
his Miranda warnings by Braden.



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       Following his arrest, Sanchez-Godinez was interviewed by Special Agent Mark
Hooten of the Drug Enforcement Agency (DEA) and Daniel Banasik, a DEA Task
Force Officer and sergeant with the Missouri State Highway Patrol. Hooten testified
that the purpose of the interview was to learn how Sanchez-Godinez obtained the
marijuana, what his role was, where the marijuana was going, who was to receive the
marijuana, and whether the marijuana could be taken to its destination in a controlled
delivery.

       Although Sanchez-Godinez could communicate with the officers in English,
Sanchez-Godinez preferred to answer in Spanish. Therefore, Special Agent Joel
Jauregui of the Bureau of Alcohol, Tobacco, and Firearms (ATF) served as an
interpreter. Jauregui testified that he is bilingual and that he serves as an interpreter
for the ATF and for other agencies. Jauregui testified that during this interview he
acted as both a translator and as a federal law enforcement officer.

      Before the interview began, Jauregui re-advised Sanchez-Godinez of his
Miranda rights in Spanish and Sanchez-Godinez signed a waiver of his rights.
According to Hooten, throughout most of the interview Hooten and Banasik asked
questions in English to Jauregui, who would then pose the question to Sanchez-
Godinez in Spanish. Sanchez-Godinez answered the questions in Spanish, with
Jauregui translating the answers into English. Sanchez-Godinez answered some
questions directly in English and clarified in English some answers given by Jauregui.
Jauregui testified that during the interview, Sanchez-Godinez admitted to knowing
about the marijuana in the truck. He also testified that Sanchez-Godinez told him
where he had picked up the marijuana and where it was going.

       On July 12, 2004, Sanchez-Godinez was charged by indictment with possession
with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(vii). On September 10, 2004, Sanchez-Godinez filed a Motion to Suppress
Evidence and Statements. On September 27, 2004, the government filed its

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Suggestions in Opposition. A hearing was held on November 2, 2004. On November
22, 2004, the magistrate recommended the denial of Sanchez-Godinez’s motion. The
district court adopted the magistrate’s recommendation.

       On February 17, 2005, Sanchez-Godinez’s jury trial commenced. During the
government’s presentation of evidence, Hooten testified regarding Sanchez-Godinez’s
interview. In particular, Hooten testified as to the substance of statements purportedly
made in Spanish by Sanchez-Godinez to Jauregui. Sanchez-Godinez’s attorney
objected to this testimony, arguing that Hooten’s testimony as to what Jauregui told
him Sanchez-Godinez said was hearsay. The district court denied the objection.

       Sanchez-Godinez’s attorney also objected to the government’s mention during
closing argument of the statutory definition of “distribution” contained in 21 U.S.C.
§ 802(11). Sanchez-Godinez’s attorney argued that because the definition was not
included in the jury instructions, it was improper for the government to advise the jury
of that definition during closing argument. After a bench conference, this objection
was also overruled.

       Following a finding of guilt by the jury, Sanchez-Godinez filed a motion for a
new trial. He argued that the government impermissibly argued law outside the jury
instructions, thereby denying his right to a fair trial. The district court denied his
motion. On June 14, 2005, the district court sentenced Sanchez-Godinez to seventy
months of imprisonment. Sanchez-Godinez brought this timely appeal.

II. Hearsay

      We review the district court’s rulings regarding the admissibility of out-of-court
statements for abuse of discretion. United States v. Londondio, 420 F.3d 777, 784
(8th Cir. 2005). “We will reverse only ‘if an error substantially prejudiced the



                                          -4-
outcome.’” Id. (quoting United States v. Roach, 164 F.3d 403, 408 (8th Cir. 1998),
cert. denied, 528 U.S. 845 (1999)).

       Hearsay evidence is generally excluded from testimony. Fed R. Evid. 802.
Admissions by a party opponent or a party opponent’s agent, however, are not
hearsay. Fed. R. Evid. 801(d)(2). At issue in this appeal is testimony given by
Hooten as to out-of-court statements made by Jauregui as Jauregui translated for
Sanchez-Godinez. Generally, an interpreter is “viewed as an agent of the defendant;
hence the translation is attributable to the defendant as his own admission and is
properly characterizable as non-hearsay under Rule 801(d)(2)(C) or (D) . . . .” United
States v. Da Silva, 725 F.2d 828, 831 (2d Cir. 1983); United States v. Lopez, 937 F.2d
716, 724 (2d Cir. 1991) (stating that “an interpreter is ‘no more than a language
conduit and therefore his translation [does] not create an additional level of hearsay.”
(quoting United States v. Koskerides, 877 F.2d 1129, 1135 (2d Cir. 1989) (alteration
in original))).

        In this case, Jauregui served as the interpreter. The fact that Jauregui is a
government employee does not, by itself, necessarily prevent him from being
Sanchez-Godinez’s agent. See Da Silva, 725 F.3d at 832. However, Jauregui testified
that he was acting as both a translator and a federal law enforcement officer. Jauregui
testified that he not only translated, he also “Mirandized” Sanchez-Godinez and asked
the types of questions he “normally would ask” in his capacity as an ATF agent.
Because Jauregui was not merely acting as a “language conduit,” but rather initiated
at least some of the questions posed in the interview, his out-of-court statements raise
hearsay concerns. Lopez, 937 F.2d at 724.

      Even if we assume that Hooten’s testimony was hearsay, the admission of the
testimony was harmless. “[W]e will not reverse an evidentiary error that was
harmless.” Londondio, 420 F.3d at 788. “‘An evidentiary error is harmless if the
substantial rights of the defendant were unaffected and the error did not influence or

                                          -5-
had only a slight influence on the verdict.’” Id. (quoting United States v. Wipf, 397
F.3d 677, 682 (8th Cir. 2005)). Here, Sanchez-Godinez has not shown any reason to
doubt the accuracy of Hooten’s testimony. Sanchez-Godinez was sufficiently fluent
in English that he was able to understand Jauregui’s translations and ensure their
accuracy. In fact, Sanchez-Godinez clarified or added to some of Jauregui’s answers.
Further, Jauregui testified at trial regarding Sanchez-Godinez’s statements. This
testimony was substantially similar to Hooten’s testimony, thus making the purported
hearsay evidence cumulative of other testimony by the declarant. Also, Jauregui’s in-
court testimony gave the defense an opportunity to cross-examine Jauregui regarding
the out-of-court statements. Finally, the evidence against Sanchez-Godinez was
overwhelming. Accordingly, any error regarding the admission of Jauregui’s out-of-
court statements was harmless.

III. Closing Argument

       Sanchez-Godinez argues that the district court abused its discretion when it
allowed the prosecutor to define the term “distribution” during its closing argument.
“Trial courts have broad discretion in controlling closing arguments . . . .” United
States v. Beckman, 222 F.3d 512, 526 (8th Cir. 2000). We review rulings on the
content of closing arguments for abuse of discretion. Id.

       To establish reversible prosecutorial misconduct, a defendant must demonstrate
that: 1) the prosecutor’s comments were improper; and 2) the comments prejudicially
affected substantial rights such that the defendant was denied a fair trial. Id. In this
case, although the prosecutor performed a function typically reserved for the court,
the comments did not prejudicially affect Sanchez-Godinez’s substantial rights.
Sanchez-Godinez concedes that the definitions given were “essentially correct
statements of the law.” Although it is improper for the government, rather than the
court, to instruct as to any definitions, we conclude that when viewed in the context
of the entire trial, any error in this case was harmless. See United States v. Dougherty,

                                          -6-
810 F.2d 763, 768 (8th Cir. 1987) (concluding that a prosecutor’s statement was
harmless as it was “nothing more than a recital of the holding in [a prior case]”).
Accordingly, the district court’s actions did not constitute an abuse of discretion.

      For the foregoing reasons, we affirm the decision of the district court.
                      ______________________________




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