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United States v. Carrion

United States Court of Appeals, First Circuit
Nov 29, 1973
488 F.2d 12 (1st Cir. 1973)

Summary

holding that "whenever put on notice that there may be some significant language difficulty, the court should make such a determination of need [for an interpreter]"

Summary of this case from U.S. v. Edouard

Opinion

No. 72-1243.

Heard November 6, 1973.

Decided November 29, 1973. Certiorari Denied April 1, 1974.

Edwin P. Whittemore, Boston, Mass., by appointment of the Court, with whom Robert M. Cove, was on brief, for defendant, appellant.

Robert B. Collins, Asst. U.S. Atty., with whom James N. Gabriel, U.S. Atty., was on brief, for appellee.

Appeal from the United States District Court for the District of Massachusetts.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.


Appellant, convicted of knowingly aiding and abetting the distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, contends that his Fifth and Sixth Amendment rights were abridged during trial because (1) the court allowed into evidence impermissible and prejudicial hearsay, (2) appellant was denied effective assistance of counsel, and (3) the court refused to appoint an interpreter for him.

The first claim is clearly lacking in merit. Even assuming that the statements were not admissible under the theory of joint venture, the court granted a motion to strike them and gave careful instructions to disregard them. Therefore, we think it unlikely that the jury relied upon the questioned extra-judicial statements in determining appellant's guilt, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We also find the second claim to be frivolous, since counsel's failure to call an alibi witness to the stand may have been motivated by strategic considerations. Appellant's third contention, however, deserves more attention, particularly in light of scarce judicial authority on the right to a court-appointed interpreter and the possible confusion which might attend this subject in the future.

Appellant is a foreign-born national with a limited ability to speak and comprehend English. He claims that, although he admitted to the court some ability to communicate and understand, his counsel's assertion at the start of the trial of the possibility of a "problem of communication" should have prompted the court to hold a special hearing to determine the extent of the problem. As evidence of his difficulty with the language, appellant points to several instances during his own testimony where questions had to be repeated or where his responses were so unclear as to require that he rephrase them. On at least one occasion the court indicated that there was apparently a "language barrier".

The necessity for an interpreter to translate from a defendant's native language into English when the defendant is on the stand, and from English into the defendant's native language when others are testifying, has been elevated to a right when the defendant is indigent and has obvious difficulty with the language, Negron v. New York, 310 F. Supp. 1304 (E.D.N.Y. 1970), aff'd, 434 F.2d 386 (2d Cir. 1970); cf. Gonzalez v. People of Virgin Islands, 109 F.2d 215 (3d Cir. 1940). Clearly, the right to confront witnesses would be meaningless if the accused could not understand their testimony, and the effectiveness of cross-examination would be severely hampered. Terry v. State, 21 Ala. App. 100, 105 So. 386, 387 (1925); cf. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1962). If the defendant takes the stand in his own behalf, but has an imperfect command of English, there exists the additional danger that he will either misunderstand crucial questions or that the jury will misconstrue crucial responses. The right to an interpreter rests most fundamentally, however, on the notion that no defendant should face the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment.

Yet how high must the language barrier rise before a defendant has a right to an interpreter? It is well settled that there is no right to an interpreter if the foreign-born defendant speaks fluent English and is "completely aware of all the proceedings". Cervantes v. Cox, 350 F.2d 855 (10th Cir. 1965). The status of the right becomes less certain, however, where, as in the present case, the defendant has some ability to understand and communicate, but clearly has difficulty.

Because the determination is likely to hinge upon various factors, including the complexity of the issues and testimony presented during trial and the language ability of the defendant's counsel, considerations of judicial economy would dictate that the trial court, coming into direct contact with the defendant, be granted wide discretion in determining whether an interpreter is necessary. See Perovich v. United States, 205 U.S. 86, 91, 27 S.Ct. 456, 51 L.Ed. 722 (1907); United States v. Barrios, 457 F.2d 680 (9th Cir. 1972); United States v. Sosa, 379 F.2d 525, 527 (7th Cir. 1967), cert. denied, 389 U.S. 845, 88 S.Ct. 94, 19 L.Ed.2d 111 (1967). It would be a fruitless and frustrating exercise for the appellate court to have to infer language difficult from every faltering, repetitious bit of testimony in the record. But precisely because the trial court is entrusted with discretion, it should make unmistakably clear to a defendant who may have a language difficulty that he has a right to court-appointed interpreter if the court determines that one is needed, and, whenever put on notice that there may be some significant language difficulty, the court should make such a determination of need.

Although the trial court in the present case did not hold a formal hearing on the question whether the appellant required a translator, it was obviously sensitive to the appellant's plight in that it did grant pretrial motions made by the appellant's two co-defendants, each asking for an interpreter during the proceedings. Thus, a procedure was available for the appellant to allege and show a language difficulty before trial commenced. Moreover, the court specifically asked counsel whether the appellant was able to communicate and understand English, to which appellant's counsel responded in the affirmative. Finally, the court told the appellant that if, at any point in the proceedings, there was something he did not understand, he need only raise his hand and the testimony would be repeated. We are not prepared to hold that the appellant had a constitutional right to any more than this.

The court refused appellant's request that one interpreter sit between appellant and a co-defendant on the reasonable ground that "[i]t doesn't work well if an interpreter has to translate for two people." In a situation where two or more parties require the services of an interpreter in the same language, it would seem to us advisable to consider the alternative of having but one interpreter and pacing the examination of witnesses to allow time for the translation into the parties' own tongue. We say this not out of a sense of economy but from a recognition of the desirability of avoiding any possibility that several parties receive differing versions of the testimony.

Affirmed.


Summaries of

United States v. Carrion

United States Court of Appeals, First Circuit
Nov 29, 1973
488 F.2d 12 (1st Cir. 1973)

holding that "whenever put on notice that there may be some significant language difficulty, the court should make such a determination of need [for an interpreter]"

Summary of this case from U.S. v. Edouard

holding that unfair and inaccurate interpretation may impact the right to confrontation

Summary of this case from Santos v. Tanner

finding no error from the trial court's failure to hold a “formal hearing on the question whether the appellant required a translator” because the trial court had established a “procedure,” i.e., motion practice, “for appellant to allege and show a language difficulty before trial commenced,” had asked trial counsel whether the “appellant was able to communicate and understand English, to which appellant's counsel responded in the affirmative,” and “told the appellant that if, at any point in the proceedings, there was something he did not understand, he need only raise his hand and the testimony would be repeated”

Summary of this case from Romero v. Beard

affirming the defendant's conviction where the trial court did not appoint an interpreter for him, but offered to repeat testimony at any time the defendant requested

Summary of this case from State v. Selalla

recognizing a constitutional right to an interpreter, but holding that the district court did not abuse its discretion in not appointing one because, in part, defendant and counsel did not explain the problem to the court

Summary of this case from U.S. v. Johnson

noting that "considerations of judicial economy" require that "the trial court, coming into direct contact with the defendant, be granted wide discretion in determining whether an interpreter is necessary"

Summary of this case from United States v. Ponzo

explaining that a trial court has “wide discretion in determining whether an interpreter is necessary,” but in using that discretion, the court “should make unmistakably clear to a defendant who may have a language difficulty that he has a right to a court-appointed interpreter if the court determines that one is needed,” and if “put on notice that there may be some significant language difficulty, the court should make such a determination of need”

Summary of this case from Romero v. Beard

stating that the "complexity of the issues and testimony presented at trial" are factors for the trial court to consider when deciding whether an interpreter is necessary

Summary of this case from State v. Jur

noting that the court must be put on notice of some significant language difficulty, and that protective procedures are sufficient to satisfy constitutional requirements

Summary of this case from State v. Selalla

noting that the trial court should have "wide discretion" when determining whether to appoint an interpreter because of the variety of factors that enter into the decision, including the defendant's ability to understand English, and the complexity of the proceedings, issues and testimony

Summary of this case from State v. Selalla

In Carrion, the court stated that "[the trial court should] make unmistakably clear to a defendant who may have a language difficulty that he has a right to a court-appointed interpreter if the court determines that one is needed, and, whenever put on notice that there may be some significant language difficulty, the court should make such a determination of need."

Summary of this case from Garcia v. State

In Carrion, the court found that the trial court had been sensitive to the defendant's difficulty with English, had inquired whether the defendant was able to communicate and understand English, and had instructed the defendant to indicate if something was unclear so that the testimony could be repeated.

Summary of this case from Kropiwka v. Dilhr

In Carrion, the First Circuit concluded that most cases raising the issue of a defendant's purported need for an interpreter would have to be resolved by deferring to the trial judge's evaluation of this issue.

Summary of this case from Vui Gui Tsen v. State
Case details for

United States v. Carrion

Case Details

Full title:UNITED STATES OF AMERICA, APPELLEE, v. ORLANDO VASQUEZ CARRION, DEFENDANT…

Court:United States Court of Appeals, First Circuit

Date published: Nov 29, 1973

Citations

488 F.2d 12 (1st Cir. 1973)

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