Monday, May 28, 2012

Case o' The Week: New Translator Case Sparks "Tense" Berzon Concurrence - Romo-Chavez

Here’s a tip for law students, applying to be Ninth Circuit clerks. Did you stretch a bit on your resume, and claim to be “fluent” after a couple of years of high school Spanish?

Brace yourself for your Berzon interview: a judge for whom “fluency” means -- well, fluency. 

United States v. Romo-Chavez, 2012 WL 1861613, *5 (9th Cir. May 23, 2012) (Berzon, J., concurring), decision available here.

Players: Hard-fought appeal by Az. AFPD M. Edith Cunningham and Defender Jon Sands.

Facts: Romo-Chavez’s car was stopped at the border. Id. at *1. After his initial explanation for his visit to the U.S. raised suspicions, the car was searched and meth discovered. Id. Romo-Chavez was interviewed by one agent, with a border patrol agent translating. Id. Romo-Chavez later explained he didn’t understand the border patrol agent’s Spanish. Id. at *2. At trial, Romo-Chavez argued that he didn’t know the meth was in the car’s secret compartments. Id. Romo-Chavez also argued that items such as a cell phone taken from his car – and lost – would have corroborated his story explaining why he was visiting the States. Id. The border agent’s recitation of the translated interview was admitted against the defendant. Id. at *2-*3. Romo-Chavez was convicted. Id. at *2.

Issue(s): “We must decide whether the Confrontation Clause or the Federal Rules of Evidence prohibit the government from introducing at trial a defendant’s admissions to a police officer because the translator who facilitated them, while conversationally fluent, would not qualify as a court interpreter.” Id. at *1.

Held: “Taking the [United States v. Garcia, 16 F.3d 341, 342 (9th Cir. 1994)] factors together, the district court did not err in concluding that [the border patrol agent] served merely as a language conduit for Romo-Chavez.” Id. at *4. The Sixth Amendment right to be confronted with the witnesses against him “is not implicated here because the [border patrol agent’] translations are properly construed as Romo-Chavez’s own statements.” Id. at *4.

Of Note: In a compelling concurrence, Judge Berzon questions the fluency of the agent who translated the interview. Id. at *5-*7 ("[T]his type of verb tense mistake is one that someone with a good grasp of Spanish should not be making.") She also continues to sound the Confrontation Clause bell, correctly warning that the Ninth’s dusty old Nazemian case is inconsistent with the Supreme’s new Confrontation Clause line. Id. at *8; see also United States v. Orm Hieng, 2012 WL 1655934, *11 (9th Cir. May 11,2012)(Berzon, J., concurring) (“I believe the continued vitality of Nazemian after Crawford is an issue that merits en banc review in an appropriate case.”) The concurrence is a very good read – an interesting mixture of scholarly analysis and practical complaint. See id. at *9 (wondering why the Department of Homeland Security can’t have competent interpreters available at the border or – better yet – record interviews so they can be later translated by qualified interpreters).

How to Use: Preserve this issue: the government’s dodge of the hearsay bar by offering an interpreter’s account of a defendant’s statement as an “admission.” 

The Ninth tolerated this evidentiary end-run in United States v. Nazemian, 948 F.2d 522(9th Cir. 1991). A decade or so later, however, the Supreme Court decided Crawford v. Washington, 541 U.S. 36(2004), and reminded us that the Confrontation Clause actually matters. 

Does Nazemian’s tolerance of interpreter statements survive Crawford? Judge Wallace thought so, this month in Hieng, 2012 WL 1655934, at *7 – but as noted above, Judge Berzon isn’t convinced. This is an issue ripe for en banc review – help the Ninth get it right by preserving it and taking it up.
For Further Reading: The Ninth is one active-judge bigger this week, after the confirmation of Judge Paul Watford. See Press Release here.  Judge Watford, an Orange County CA native, is a former CD Cal AUSA. 

Keep an eye out for the eventual panel of CJ Kozinski, Judge Ikuta, and Judge Watford: the latter two both clerked for the Chief. See blog entry here. Would be fascinating to be a fly on the wall of that post-argument conference -- two former clerks weighing-in on an outcome with their former boss (but now weighing-in with a vote!) 

Image of the "Lost in Translation" poster from

Image of the Honorable Paul Watford from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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