Federal Appeals Court Holds That Statements of Confessions Made To a Federal Agent Through an Interpreter Are Not Admissible
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.