The 11th Circuit Court of Appeals has held that the Government cannot introduce post-Miranda statements made by a Defendant through a foreign language interpreter without calling that interpreter as a witness. To so so would violate a Defendant’s Constitutional Right to Confront Witnesses. The Defendant must be allowed to cross – examine the interpreter as to what the Defendant actually said. United States v. Manoucheka Charles, No. 12– 14080 July 25, 2013 Appeal from the United States District Court for the Southern District of Florida Panel: Barkett and Marcus, Circuit Judges, and Conway, District Judge (Honorable Anne C. Conway, Chief Judge, United States District Court for the Middle District of Florida, Sitting by Designation) Barkett, Circuit Judge: Affirmed In this important Confrontation Clause decision, the Eleventh Circuit holds that when the government seeks to introduce at trial statements made by the defendant to a government agent through an interpreter, the “declarant,” for purposes of the Sixth Amendment and Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354 (2004) is the interpreter, not the government agent. The court of appeals thus held that the district court erred in this case in admitting an agent’s testimony as to defendant’s statements to him, when those statements had been translated for the agent by an interpreter and defendant had no opportunity to cross examine the interpreter. The court ultimately affirmed, however, because the defendant had not objected to the testimony in the court below, and the error was not “plain” as required for reversal in the absence of a contemporaneous objection. Charles, a Haitian national, appealed from her conviction for knowingly using a fraudulently altered travel document in violation of 18 U.S.C. § 1546(a). Charles, who speaks Creole and does not speak English, arrived at the Miami International Airport from Haiti and presented her travel documents to a Customs and Border Protection officer, among which was a Form I–512, which provides authorization for persons to travel in and out of the United States while they are in the process of gaining legal immigration status. Charles was sent to secondary inspection, where she was interrogated by a CBP officer, who did not speak Creole, but who used an over-the-phone interpreter service under contract with the Department of Homeland Security to allow him to conduct his interrogation. At trial, the government did not call the interpreter to testify. Instead, the government presented the testimony of the CBP officer to establish what happened at the airport. The CBP officer, who conducted the interrogation through the interpreter, told the jury what the interpreter told him Charles had said. He testified that the interpreter told him that Charles stated that she did not receive the I–512 from United States authorities, but that she received the document about a month after she provided her photograph and passport to a man who offered to help her and that she did not pay anything for the document. He then testified that Charles also stated, through the interpreter, that “when she sat down [on the plane], she started reading the document and she noticed that the document was illegal because it didn’t fit her profile.” Because the government did not call the interpreter as a witness, Charles did not have an opportunity to cross-examine the interpreter regarding what any of Charles’s purported statements meant or what specific words or phrases Charles actually used. On appeal, Charles argued that her Confrontation Clause rights were violated by the admission of the CBP officer’s in-court testimony as to the interpreter’s English language out-of-court statements, without the opportunity to cross examine the interpreter. The Eleventh Circuit began its review by noting that in Crawford v. Washington, the Supreme Court had explained that under the Confrontation Clause, testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. Applying Crawford ’s framework, the Eleventh Circuit found that Charles had a Sixth Amendment right to confront the interpreter, who was the declarant of the out-of-court testimonial statements that the government sought to admit through the testimony of the CBP officer. There was no debate that the statements of the interpreter as to what Charles said were “testimonial,” the Court wrote, and the government sought admission of the interpreter’s statements of what Charles said to prove the truth of those statements. Thus, the Court held, the interpreter’s English language statements of what Charles told her in Creole were testimonial and subject to Crawford ‘s mandate governing the Confrontation Clause. During the trial, the Court stated, when the CBP officer testified as though the statements were made by Charles in English, he was actually testifying to the out-of-court statements of the interpreter, and, accordingly, was the declarant of the English-language statements that the CBP officer heard and testified to at trial. Consequently, the Court concluded, because Charles has the right, under the Confrontation Clause, to confront the “declarant,” that is, the person who made the out-of-court statement, she had the right to confront the Creole language interpreter about the statements to which the CBP officer testified to in court. The Court rejected government arguments to the effect that courts should treat the interpreter’s out-of-court statements as if they were the defendant’s own and thus, consider Charles to be the declarant of those statements for purposes of the Confrontation Clause analysis. The Court wrote that even though an interpreter’s statements may be perceived as reliable and thus admissible under the hearsay rules, the Supreme Court, in Crawford, had rejected reliability as too narrow a test for protecting against Confrontation Clause violations. Instead, the Supreme Court held that the Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” The Eleventh Circuit thus concluded that it was a violation of Charles’s Sixth Amendment right to confrontation to admit the CBP officer’s testimony of the interpreter’s statements of what Charles said where Charles had no opportunity to cross-examine the interpreter. Judge Marcus filed an opinion concurring in the judgment, arguing that the panel should have side-stepped the constitutional question involved in deciding whether error occurred in the first place, and merely have denied relief on the basis that the error was not plain.