U.S. v. Solorio, No. 10-10304 (1-19-12) (Berzon with O'Scannlain and Lasnik, D.J.).

The 9th affirms a convictions for drug trafficking arising from an undercover operation. Of interest is the 9th's discussion and holding regarding interpreter oaths. Some courts have an interpreter swear an oath, under FRE 604, and it is kept on file. Other courts have interpreter's swear under FRE 603, witness oath, for the witness or trial. Here, there is no indication of any interpreter oath being sworn. However, there is no plain error because there is no prejudice. There is no indication that the interpretation is disputed or how it affected the trial. Of more concern is the 9th's allowance of DEA agents' testimony of other agents statements under a present sense impression and a finding of no Crawford violation. The 9th allowed the statements under a plain error analysis, finding no error. The statements were made during the course of the unfolding undercover buy, which was characterized as highly dangerous. The 9th bought the government argument that the non-testifying agents' were explaining what was happening so as to have support from other agents, and not for making a record for trial. This was characterized as like the "emergency exception" to Crawford carved out in Michigan v. Bryant, 131 S.Ct 1143, 1157 (2011). The statements were non-testimonial. The 9th concluded that there was sufficient evidence to support the convictions and no cumulative error.