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Ninth Circuit:
‘Language Conduit’ Rule Applies to Testifying Interpreter
Opposing Party Hearsay Exception Only Applies if Statements Pass Four-Part Test, Expanding Standard Applied to Non-Testifying Translators
By a MetNews Staff Writer
The Ninth U.S. Court of Appeals held yesterday that the same test applies in determining if statements of a suspect to a law enforcement officer are admissible in evidence under the party admissions exception to the hearsay rule whether the officer hears a translation into English—the situation dealt with in a 2019 opinion—or converses in a foreign language without the services of a translator.
Senior District Judge Susan R. Bolton of the District of Arizona, sitting by designation, authored the opinion. Applying the harmless error doctrine, it affirms the judgment of conviction by District Judge Todd W. Robinson of the Southern District of California notwithstanding error in not applying the test for admissibility set forth by the Ninth Circuit in United States v. Nazemian.
Circuit Judge Salvador Mendoza Jr. and Senior Circuit Judge Marsha S. Berzon and joined in the opinion.
The decision comes in a case where a defendant was charged with misdemeanor attempted illegal entry into the U.S. after admitting in Spanish to a border patrol agent that he had crossed the border with no immigration paperwork. Agent Brian Mauler testified at trial in English as to the admissions, having had only two months of training in Spanish and admitting that he was not a fluent Spanish-speaker.
Lower Court Proceedings
Appealing his conviction for a violation of 8 U.S.C. §1325(a)(1) was Ulises Lucas-Hernandez, who was found in November 2019 in a remote, rugged area three-and-a-half miles north of the U.S. and Mexico border by Mauler. Lucas-Hernandez was with two other individuals at the bottom of a 20-foot deep sand wash when the agent contacted him.
Before trial, Lucas-Hernandez moved to exclude Mauler from testifying to the Spanish-to-English translation of the pre-arrest conversation, arguing that the statements were hearsay and that Mauler was not qualified as an expert in Spanish translation.
Magistrate Judge Linda Lopez of the of the Southern District of California denied the motion, finding the answers qualified under the hearsay exception for statements by a party opponent, and deferred the question as to Mauler’s qualifications until trial, where she said Mauler would be required to “lay a proper foundation” that he understood what Lucas-Hernandez said.
After a bench trial at which she admitted Mauer’s testimony, Lopez found the defendant guilty and sentenced him on Oct. 26, 2020 to time served. Lucas-Hernandez challenged his conviction in District Court, asserting that Mauler’s testimony of the field statements fell outside the hearsay exception because he was not a “mere language conduit” under the standard established by Nazemian.
Robinson affirmed Lopez’s ruling, finding that the standard established by Nazemian did not apply to statements translated by the witness testifying at trial and that Mauler had laid a sufficient foundation for establishing that he understood Lucas-Hernandez.
Nazemian Case
Bolton explained that an out-of-court statement made by, and offered against, an opposing party is not hearsay under Federal Rule of Evidence 801(d)(2).
In the Nazemian decision, then-Circuit Judge (now Senior Circuit Judge) William A. Fletcher wrote that the court was asked to consider “the issue of how to treat extrajudicial [opposing party] statements made through an interpreter when the testifying witness was unable to understand the original language of the declarant and can testify only to the words of the interpreter.”
Fletcher’s opinion identified four factors to determine whether the interpreter should be treated as a mere “language conduit” such that his statements would be attributable to the defendant—which party supplied the interpreter, whether the interpreter had any motive to mislead, the qualifications and language skill of the interpreter, and whether actions taken after the conversation were consistent with the translation.
Bolton noted that “[w]e have thus far applied the Nazemian factors only where the witness testified to a third-party interpreter’s translation of the declarant’s statement,” but reasoned that the same issues underpin the analysis where the translator is also the testifying witness.
Finding that the “threshold inquiry” considers whether a translated statement may be attributed to the original speaker rather than to the interpreter, as the question is, at its heart, whether the statement is one by a party opponent. Rejecting the prosecution’s argument that the Nazemian analysis is inapplicable to cases without a formal, out-of-court translator, Bolton reasoned:
“If anything, it is even more critical for courts to assess the language competence of someone who is not a formal interpreter, and whose language proficiency has neither been tested nor certified, when the prosecution seeks to rely on that person’s translations of statements purportedly made by or to a criminal defendant. Particularly where a person with minimal language skills attempts to communicate in that language with a potential criminal defendant, the risk of mispronunciation, miscommunication, or mistranslation is high.”
She continued:
“Applying the Nazemian analysis in these circumstances helps to ensure the accuracy of statements or admissions made in another language before they can be admitted against a criminal defendant.”
Harmless Error
Bolton said “[t]he Nazemian standard is a fact-intensive inquiry that must be applied by the district court on first instance,” but concluded that “we need not remand here, because any error in admitting Agent Mauler’s testimony was harmless.”
She pointed to the other evidence offered by the prosecution during the trial to prove that Lucas-Hernandez did not have legal status, such as the remote location near the border where he was contacted, his inability to present documentation showing he was allowed to be in the U.S., and evidence from his alien-file, known as an A-file, showing he had been previously deported 12 times.
Under these circumstances, Bolton declared:
“Considering together the evidence presented from Lucas-Hernandez’s A-file, the database searches, and the circumstances when he was found by Agent Mauler, we conclude that any error in admitting Lucas-Hernandez’s statements more likely than not did not affect the verdict.”
The case is United States v. Lucas-Hernandez, 22-50110.
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