Lawyer by day, hacker by night, proud Navy veteran, writer, promoter of civility in political discourse, Philadelphia and Penn State sports fanatic, practicing philomath, bibliophile, enigmatologist, and last but certainly not least, Dad and Husband.
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.
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.
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.
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
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
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
The Defendant’s motion should be denied
because neither the Defendant nor his lawyer ever asked the court for an
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.
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
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 alsoOsuna, 189 F.3d at 1296 (Brorby, J., dissenting).
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
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
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
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.
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
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
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.