24 June 2013

Writing sample: Court Interpreters Act (28 U.S.C.A. § 1827)


IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA



THE UNITED STATES OF AMERICA,
          Plaintiff

          v.

GONZALEZ, ROBERT,
          Defendant

Case No.: 09-CR-1322

BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO
DISMISS OR RECONSIDER THE SUPPRESSION HEARING AND
DISQUALIFY INTERPRETER FOR PROSECUTION WITNESS

STATEMENT OF FACTS
On December 9, 2009, James Narren (an employee of the United States Postal Service) was assaulted and robbed in an alley behind Le Mar Café in New Orleans, Louisiana. R. at 2. The mugging was witnessed by Larry Rhet, a busboy working at the Café. Thauer Aff. ¶¶ 9-10.
Mr. Narren described his attacker as a Hispanic male, solidly built, and between 5'6" and 5'10" tall. R. at 2. The attacker was wearing blue jeans and a red and black shirt. R. at 2. This description was radioed to dispatch for wide release. R. at 2. Officer Michelle Belloit recognized the Defendant as meeting the description, placed him investigative detention, and transported him to the station. R. at 2.
At the station, the Defendant was escorted to an interrogation room. R. at 12. Detective Kevin Anderson testified that he read the defendant his Miranda warnings, the Defendant acknowledged understanding them, and the Detective questioned him for about fifteen minutes. R. at 12.
The Defendant’s attorney moved to suppress statements premised on insufficient or missing warnings of his constitutional rights. R. at 7. At his suppression hearing, the Defendant testified in English with an accent and occasionally lapsed into Spanish. On two occasions, he interrupted Officer Belloit and Detective Anderson. R. at 8, 11. He alleges he was never told that he had the right to remain silent nor that he could have an attorney, per Miranda. R. at 15.
Judge Redman found Detective Anderson’s testimony to be credible, and denied the Defendant’s motion to suppress. R. at 18.
At trial, the United States seeks to use Angie Thauer as an interpreter for Larry. Angie is a 21-year old high school graduate, Thauer Aff. ¶ 1, dating 22-year old Larry Rhet. Thauer Aff. ¶ 2.  She has known Larry since she was four. Thauer Aff. ¶ 2. They grew up on the same street and attended the same schools, Thauer Aff. ¶ 2, and have a long-term friendship and began dating approximately two years ago. Thauer Aff. ¶ 4. Both work at Le Mar Café in New Orleans. Thauer Aff. ¶ 2.
Larry has a stuttering problem brought on by fear of speaking in public places. Thauer Aff. ¶ 5. He speaks softly and uses gestures with his hands and head when he is trying to speak. Thauer Aff. ¶ 5. When speaking to strangers, Larry often resorts to these gestures. Thauer Aff. ¶ 5. Because of their longtime relationship, Angie can understand Larry’s gestures. Thauer Aff. ¶ 8.
Because of his stuttering problem, Larry communicated to Angie, who called 911. Thauer Aff. ¶ 10. Angie facilitated communication between Larry and a police officer by interpreting his hand gestures and head movements. Thauer Aff. ¶ 11.
The Defendant asked this Court to dismiss the case, or alternatively, to provide a new suppression hearing based on the lack of an interpreter at the suppression hearing. The Defendant also moved to disqualify Angie as Larry’s interpreter based on Angie’s personal relationship with Larry.
QUESTIONS PRESENTED
I. Is the Defendant entitled to dismissal of the charges, or alternatively, a new suppression hearing, when neither the Defendant nor his lawyer asked the court to provide an interpreter, and he could understand the proceedings and communicate with his lawyer and the judge?
II. Can Angie Thauer serve as witness Larry Rhet’s interpreter, when Angie is Larry’s girlfriend, and Larry’s disability requires Angie’s assistance to communicate, while still protecting the Defendant’s constitutional rights?
ARGUMENT
I. THE DEFENDANT’S MOTION TO DISMISS SHOULD BE DENIED BECAUSE NEITHER THE DEFENDANT NOR HIS LAWYER ASKED THE COURT FOR AN INTERPRETER, THE DEFENDANT SPOKE ENGLISH, UNDERSTOOD THE PROCEEDINGS AND WAS ABLE TO COMMUNICATE WITH HIS LAWYER AND THE COURT. 
The Court Interpreters Act (“Act”) established a program to facilitate the use of interpreters for defendants or witnesses who are not proficient in English, or suffer from a hearing impairment, such that their comprehension becomes inhibited. 28 U.S.C.A. § 1827(d)(1) (West). The Act’s purpose is to enable communications and comprehension of court proceedings among parties. Id. The Act does not provide an absolute right to an interpreter, but rather gives the court discretion to determine whether the failure to provide an interpreter would inhibit a party’s communication or comprehension. United States v. Tapia, 631 F.2d 1207, 1209 (5th Cir. 1980).
A. Neither the Defendant nor his lawyer asked for an interpreter.
The Defendant’s motion should be denied because neither the Defendant nor his lawyer ever asked the court for an interpreter.
It is not error for a court to fail to appoint an interpreter when the defendant never made such a request. United States v. Perez, 918 F.2d 488, 490 (5th Cir. 1990). In Perez, the defendant indicated that he had some difficulty with the English language, but never made any request for an interpreter. 918 F.2d at 490. Similarly, in United States v. Paz, the defendant never asserted that she had trouble understanding the proceedings. United States v. Paz, 981 F.2d 199, 201 (5th Cir. 1992). Here, there is no indication that the Defendant or his lawyer ever asked the court to provide an interpreter. This failure weighs heavily against the Defendant.
It is true that in Tapia, the 5th Circuit ruled that the trial court should have inquired whether the failure to have an interpreter inhibited the defendant’s comprehension of the proceedings and communications with his lawyer, but did not do so. 631 F.2d at 1209. However, the Tapia court was on notice because the defendant had previously been arraigned through an interpreter. Id. Similarly, the court erred when it failed to inquire into the defendant’s need for an interpreter when the defendant made an express request for such assistance. Giraldo-Rincon v. Dugger, 707 F. Supp. 504, 507 (M.D. Fla. 1989). In both Tapia and Dugger, the courts were put on notice by a prior action or a request by the defendant. On the contrary, when a defendant expressed difficulty in understanding the proceedings, and asked for a translation of an “awkwardly-phrased question,” the court found that the Act had not been triggered. United States v. Edouard, 485 F.3d 1324, 1339 (11th Cir. 2007).
Here, there are no facts to suggest that the court had any indication of the Defendant’s language abilities prior to the suppression hearing. The Defendant’s situation is similar to those in Perez, Paz, and Edouard. While there may have been an indication of misunderstanding, the Defendant never made an express or implied request to trigger the Act. Likewise, nothing in the Act or the prior decisions of this Circuit requires the court to raise the issue sua sponte. To require such a prophylactic rule would overburden the court’s limited resources and run afoul of judicial efficiency.
As a result of these factors, the Defendant’s motion should be denied because neither the defendant nor his lawyer ever asked the court for an interpreter.
B. Misunderstandings, accents, and lapses into Spanish do not demonstrate a failure to communicate.
 The Defendant’s motion should be denied because the context of the Defendant’s misunderstandings, the Defendant’s accent, and his occasional lapses into Spanish do not demonstrate a failure to communicate.
Interruptions and misunderstandings of a witness who otherwise demonstrates English competency are not a sufficient basis for appointing an interpreter. United States v. Black, 369 F.3d 1171, 1174 (10th Cir. 2004).  In Black, a witness who spoke English but was more comfortable speaking Navajo occasionally misinterpreted a question. Id. On several occasions, the court interrupted the witness’s testimony because she could not be understood. Id. Nonetheless, the court concluded that she possessed an adequate mastery of the English language. Id. at 1174-175.
Here, the Defendant twice interrupted the testimony of Officer Belloit and Detective Anderson. R. at 8, 11. The context of the interruptions (and the fact that he interrupted at all) suggests that the Defendant appreciated the circumstances, but might have misunderstood a word. Even primary speakers of English might have occasion to make the same mistake, especially in an unfamiliar setting. This is hardly evidence of the need for an interpreter. Additionally, the transcript demonstrates the Defendant’s adequate fluency in English.
It is not error for a court to deny an interpreter to a defendant who speaks English with a heavy accent. United States v. Arthurs, 73 F.3d 444, 447 (1st Cir. 1996). In Arthurs, the defendant spoke English with a Jamaican accent but was otherwise intelligible to the jury. Id. Additionally, counsel for the defendant never asserted any comprehension problems on his client’s behalf. Id. Here, the Defendant spoke accented English and occasionally lapsed into Spanish. The Defendant’s lawyer never raised the issue of the defendant’s accent nor made any references to his occasional Spanish. The Defendant was intelligible to the court. Likewise, neither of these facts shows any evidence that the Defendant did not also have a comparative understanding of English.
On the other hand, in United States v. Osuna, the 10th Circuit found that a defendant’s occasional lapses into Spanish might otherwise alert the court to the need to inquire about an interpreter. United States v. Osuna, 189 F.3d 1289, 1293 (10th Cir. 1999). However, the Osuna court also noted that the defendant’s testimony was often unintelligible to the court reporter, that the judge expressed difficulty in understanding the defendant, and that the prosecutor suggested an interpreter. Id. at 1291, 1293. Here, none of those facts exist. Moreover, the Defendant was intelligible to the court reporter and the judge. The situation is more akin to Black, where the witness was more comfortable speaking Navajo, but was otherwise proficient in English. Black, 369 F.3d at 1174.
As a result, the Defendant’s motion should be denied because the context of the Defendant’s misunderstandings, the Defendant’s accent, and his occasional lapses into Spanish do not demonstrate a failure to communicate.
II. THE COURT SHOULD DENY THE DEFENDANT’S MOTION TO DISQUALIFY ANGIE AS LARRY’S INTERPRETER BECAUSE THE UNIQUE CIRCUMSTANCES OF LARRY’S CONDITION AND HIS RELATIONSHIP WITH ANGIE CAN AID THE COURT’S UNDERSTANDING WHILE PROTECTING THE DEFENDANT’S CONSTITUTIONAL RIGHTS. 
Courts have discretion to determine whether the failure to provide an interpreter would inhibit a party’s communication or comprehension. Tapia, 631 F.2d at 1209. The legislative history of the Act suggests that courts are capable of “…providing, on [their] own initiative, assistance, where appropriate, to [individuals who suffer from a speech impairment which is not accompanied by a hearing impairment] if it will aid in efficient administration of justice.” H.R. Rep. No. 95-1687, at 7 (1978). Likewise, a trial judge is uniquely positioned to evaluate a witness's comfort and intelligibility of language use in relation to the complexity of the proceedings and issues. United States v. Coronel-Quintana, 752 F.2d 1284, 1291 (8th Cir. 1985); see also Osuna, 189 F.3d at 1296 (Brorby, J., dissenting).
A. Close family and relatives can be interpreters, but the court must examine them for disinterest, necessity, and available alternate methods of testifying, to address issues of fundamental fairness. 
The court should deny the Defendant’s motion to disqualify Angie because she is disinterested, and her relationship with Larry is unique and necessary to aiding the court’s understanding of Larry’s testimony while protecting the fundamental fairness of the Defendant’s constitutional rights.
     While courts have preferred the use of disinterested interpreters, they have endorsed the choice of family members and close relatives as interpreters when it aided the court’s understanding of the witness’s testimony. Fairbanks v. Cowan, 551 F.2d 97, 99 (6th Cir. 1977) (father); see also United States v. Addonizio, 451 F.2d 49, 68 (3rd Cir. 1972) (wife). In Fairbanks, the father was an appropriate interpreter because he was one of the few people in a position to understand his son’s guttural sounds. 551 F.2d at 98. In United States v. Ball, the court permitted the wife of a deaf witness to interpret. United States v. Ball, 988 F.2d at 9 (5th Cir. 1993). Similarly, in United States v. Bell, the interpreter was the victim’s sister. United States v. Bell, 367 F.3d 452 (5th Cir. 2004).
On the other hand, the court abuses its discretion in appointing a family member when the interpreter is too emotionally attached to the outcome. Consequently, in Prince v. Beto, the husband of a rape victim (the only witness) as an interpreter “deprived petitioner of a fair trial and the unfairness [was] so fundamental as to deny him due process.” Prince v. Beto, 426 F.2d 875, 876 (5th Cir. 1970).
However, even in Prince the court recognized that it might not be possible to obtain a “wholly disinterested person.” Id. at 877, citing Almon v. State, 109 So. 371, 372 (Ala. 1926) (Prosecutor's mother was acceptable interpreter for infirm, tongue-tied victim). Close family and relatives can be interpreters, but the court must examine them for disinterest, necessity, and available alternate methods of testifying. Ball, 988 F.2d at 10. In Ball, these factors weighed in favor of the interpreter: the interpreter was married to a deaf witness, and the witness’s handicap necessitated the use of a family member (Ball did not address alternate means of testifying). Id. Prince is also distinguished by the fact that the husband-interpreter of the rape victim tried to extort $100 from the defendant in return for dropping a charge. This “direct and substantial interest” effectively disqualified him as an interpreter. 426 F.2d at 876. Here, the facts do not show any such “direct and substantial interest.” Id.
In Ball, the longstanding relationship between the deaf witness and his wife “allowed the two to communicate with one another freely.” Ball, 988 F.2d at 9. The victim’s sister in Bell was able to communicate with the victim by interpreting his grunts and gestures. 367 F.3d at 463. The wife in Addonizio was at her husband’s bedside and could “understand his words almost without hesitation,” despite the fact that he could only mumble. Addonizio, 451 F.2d at 68.
Larry and Angie have a long-term relationship that allows her to understand Larry when he becomes scared. While there is an emotional attachment, this is not disqualifying.  Similarly, Angie’s relationship with Larry places her in a unique position to assist the court’s understanding of his testimony. Angie’s relationship with Larry is similar to the unique familial relationships in Ball, Bell, and Addonizio.
Lastly, Larry is a witness, not a direct party. This fact distinguishes this case from Prince. As a result, Angie is likely to have less direct interest in the outcome. The strong emotional bias and interest in the outcome of a rape case (not to mention the attempted extortion) that the court found in Prince does not exist here. Accordingly, Angie and Larry’s relationship uniquely suits her to be his interpreter. An interpreter for a witness (and not a direct party) mitigates concern about bias. In sum, these issues do not rise to the level where they would be fundamentally unfair to the Defendant.
The court should deny the Defendant’s motion to disqualify Angie because her relationship with Larry is unique and necessary to aiding the court’s understanding of Larry’s testimony while protecting the Defendant’s constitutional rights.
CONCLUSION
Neither the Defendant nor his lawyer asked for an interpreter. Neither accented English, misunderstandings, or lapses into Spanish demonstrated evidence of a failure to communicate. The United States respectfully requests the Court to deny the defendant’s motion to dismiss, or alternatively, to deny the Defendant’s motion for a new suppression hearing.
The court has discretion in accommodating parties, to include the appointment of interpreters, to aid in the court’s understanding of their testimony. Close family and relatives can be interpreters if the court considers the interpreter’s interest and involvement in the case, the necessity of having a relative or family member act as an interpreter, and available modes of testimony, to allay the defendant’s constitutional due process concerns. The United States respectfully requests that the Court deny the Defendant’s motion to disqualify Angie as Larry’s interpreter.

DATED: April 2, 2013                                               Michael Schearer___          
                                                                             United States Attorney
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