Case No IN THE. UNITED STATES OF AMERICA, Petitioner, v. VICTORIA SPECTOR, Respondent. BRIEF FOR RESPONDENT

Transcription

1 Case No TEAM # 27-R IN THE UNITED STATES OF AMERICA, Petitioner, v. VICTORIA SPECTOR, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR RESPONDENT i

2 QUESTIONS PRESENTED 1. Whether admitting an interpreter s translation into English of statements made by a defendant in a foreign language without permitting the defendant to cross-examine the interpreter violates a defendant s Sixth Amendment right to confrontation under Crawford v. Washington. 2. Whether the Fifth Amendment s prohibition against the use or derivative use of a defendant s compelled testimony in a criminal trial applies when the testimony was compelled by a foreign sovereign and released to the public, without the United States involvement, in the midst of the United States investigation. 3. Whether a defendant s Fifth Amendment privilege against self-incrimination is violated by admitting, as substantive evidence of guilt in the Government s case in-chief, evidence that the defendant remained silent when accused of criminal conduct, while the defendant was in custody but before the defendant received Miranda warnings. ii

3 TABLE OF CONTENTS QUESTIONS PRESENTED... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES... v STATEMENT OF FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 I. ADMITTING AN INTERPRETER S TRANSLATION OF TESTIMONIAL STATEMENTS MADE BY A DEFENDANT IN A FOREIGN LANGUAGE WITHOUT PERMITTING THE DEFENDANT TO CROSS EXAMINE THE INTERPRETER VIOLATES THE DEFENDANT S SIXTH AMENDMENT RIGHT TO CONFRONTATION UNDER CRAWFORD V. WASHINGTON..4 A. The Confrontation Clause Bars Un-Confronted Testimonial Statements, Even When They Are Nominally Labeled Not Hearsay By The Federal Rules Of Evidence B. An Interpreter Must Be Considered The Declarant Of His Translated Statements, Rather Than The Party For Whom He Is Translating, Due To The Discretion, Contextual Influence, Linguistic Complexities, And Potential For Miscommunication Or Bias Inherent In Translation C. Spector Could Not Have Adequately Understood Multz s Statements As To Tacitly Adopt His English Versions Of Her Testimony As Her Own Under 802(D)(2)(B) D. Neither An Interpreter s Reliability, Nor His Status As A Defendant s Agent, Bear On A Defendant s Sixth Amendment Right To Confront Him About His Translation Of Her Testimony E. Considering interpreters declarants subject to cross-examination will not pose an undue burden on law enforcement or the judicial process II. THE USE OR DERIVATIVE USE OF A DEFENDANT S COMPELLED TESTIMONY IN A CRIMINAL TRIAL VIOLATES THE FIFTH AMENDMENT WHEN THE TESTIMONY IS COMPELLED BY A FOREIGN SOVEREIGN AND RELEASED TO THE PUBLIC, WITHOUT THE UNITED STATE S INVOLVEMENT, IN THE MIDST OF A THE UNITED STATES INVESTIGATION...16 A. The Fifth Amendment Privilege Against Self-Incrimination Prohibits The Use Or Derivative Use Of Compelled Testimony In Criminal Trials B. The Privilege Against Self-Incrimination Is A Constitutional Trial Right, Therefore The Right Is Not Altered By The Source Of The Compelled Testimony iii

4 C. The Prohibition On The Use And Derivative Use Of Foreign Compelled Testimony Furthers The Underlying Purposes Of The Fifth Amendment III. A DEFENDANT S CUSTODIAL PRE-MIRANDA SILENCE MAY NOT BE OFFERED BY THE GOVERNMENT IN ITS CASE-IN-CHIEF AS SUBSTANTIVE EVIDENCE OF GUILT BECAUSE (1) THE RIGHT TO REMAIN SILENT IS A CONSTITUTIONAL RIGHT WHOLLY SEPARATE FROM MIRANDA; (2) WHICH TRIGGERS ONCE A DEFENDANT IS IN POLICE CUSTODY; (3) AND BECAUSE ALLOWING ITS USE WOULD UNDERMINE THE PURPOSES OF THE FIFTH AMENDMENT 23 A. The Right To Remain Silent Is A Constitutional Right Which Exists Outside Of This Court s Holding In Miranda, Therefore The Substantive Use Of Pre-Miranda, Post-Arrest Silence Violates That Right B. The Right To Remain Silent Begins When A Defendant Is Taken Into Police Custody, Not When Miranda Warnings Are Given C. The Fifth Amendment Right To Remain Silent Would Be Undermined If This Court Permits The Substantive Use Of Post-Arrest, Pre-Miranda Silence In The Government s Case In Chief CONCLUSION iv

5 TABLE OF AUTHORITIES UNITED STATES CONSTITUTION U. S. CONST. AMEND. VI U.S. CONST. AMEND. V UNITED STATES SUPREME COURT Arizona v. Youngblood, 488 U.S. 51 (1988) Bd. of Trustees of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011)... 9 Blau v. United States, 340 U.S. 159 (1950) Bram v. United States, 168 U.S. 532 (1897) Bullcoming v. New Mexico, 564 U.S 647 (2012)... passim Davis v. Washington, 547 U.S. 813 (2006) Doyle v. Ohio, 426 U.S. 610 (1976)... 23, 24 Fletcher v. Weir, 455 U.S. 603 (1982) Griffin v. California, 380 U.S. 609 (1965) Hoffman v. United States, 341 U.S. 479 (1951) Jenkins v. Anderson, 47 U.S. 231 (1980)... passim Kastigar v. United States, 406 U.S. 441 (1972)... 16, 17, 19 Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) Lambert v. California, 355 U.S. 225 (1957) Malloy v. Hogan, 378 U.S. 1 (1964) Melendez-Diaz v. Massachusetts 557 U.S. 305 (2009)... 9, 14, 15 Miranda v. Arizona, 384 U.S. 436 (1966)... passim Murphy v. Waterfront Comm n of N.Y. Harbor, 378 U.S. 52 (1964)... passim Ohio v. Roberts, 448 U.S. 56 (1980)... 11, 14 Rhode Island v. Innis, 446 U.S. 291 (1980) Salinas v. Texas, 570 U.S. 178 (2013)... 23, 27, 28 Shepard v. United States, 290 U.S. 96 (1933) Thompson v. Keohane, 516 U.S. 99, 112 (1995) United States v. Balsys, 524 U.S. 666 (1998)... 21, 22 United States v. Crawford, 541 U.S. 36 (2004)... passim v

6 United States v. Dickerson, 530 U.S. 428 (2000) United States v. Hale, 422 U.S. 171 (1975) United States v. Vergo, 494 U.S. 259 (1990) Wainwright v. Greenfield, 474 U.S. 284 (1986)... 23, 24 Williams v. Illinois, 567 U.S. 50 (2012) Wilson v. United States, 162 U.S. 613 (1896) UNITED STATES COURT OF APPEALS Germano v. Int'l Profit Ass'n, Inc., 544 F.3d 798 (7th Cir. 2008)... 8 In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 177 (2d. Cir. 2008) Mahlandt v. Wild Canid Survival & Research Ctr., Inc., 588 F.2d 626 (8th Cir. 1978) Miller v Gammie, 335 F3d 889 (9th Cir. 2003) United States v. Abu Ali, 528 F.3d 210, 248 (4th Cir. 2008) United States v. Allen, 864 F.3d 63, 82 (2d. Cir. 2017)... 18, 20, 21 United States v. Burson, 952 F.2d 1196 (10th Cir. 1991) United States v. Charles, 722 F.3d 1319 (11th Cir. 2013)... 7, 13, 14 United States v. Da Silva, 725 F.2d 828 (2d Cir.1983) United States v. Lopez, 937 F.2d 716 (2d Cir. 1991)... 8 United States v. Love, 767 F.2d 1052 (4th Cir. 1985) United States v. Moore, 104 F.3d 377 (D.C. Cir. 1997)... 27, 28 United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991)... passim United States v. Orm Hieng, 679 F.3d 1131 (9th Cir. 2012)... 6, 11 United States v. Osuna-Zepeda, 416 F.3d 838 (8th Cir. 2005) United States v. Romo-Chavez, 681 F.3d 955 (9th Cir. 2012)... 8, 11, 14 United States v. Shibin, 722 F.3d 233 (4th Cir. 2013)... 9 United States v. Ushakow, 474 F.2d 1244 (9th Cir. 1973)... 6 United States v. Velarde-Gomez, 269 F.3d 1023 (9th Cir. 2001) (en banc)... 24, 26 United States v. Vidacak, 553 F.3d 344 (4th Cir. 2009)... 9, 13 United States v. Wilchcombe, 838 F.3d 1179 (11th Cir. 2016) vi

7 UNITED STATES DISTRICT COURT United States v. Clarke, 611 F. Supp. 2d 12 ( 2009 D.C. Dist. Ct.)... 18, 22 FEDERAL STATUES AND RULES FRE FRE 801(d)(2)... passim FRE 801(d)(2)(B) FRE FRE 801(d)(2)(C) or (D)... 13,14 SECONDARY SOURCES Marty Skrapka, Silence Should Be Golden: A Case Against the Use of a Defendant's Post-Arrest, Pre-Miranda Silence as Evidence of Guilt, 59 Okla. L. Rev. 357, 358 (2017) vii

8 STATEMENT OF FACTS In March of 2014, based on an anonymous tip, the Federal Bureau of Investigation ( FBI ) opened an investigation into whether Bank Plaza, the American division of the National Bank of Remsen, had redirected charitable donations to help fund a separatist organization in the country of Remsen known as DRB. As part of that investigation, Bank Plaza s CEO, Victoria Spector agreed to be interviewed by FBI Special Agent Jack Malone. Ms. Spector s native language is Remsi, the national language of Remsen, and she is more comfortable speaking Remsi than she is English. To facilitate the interview, the FBI hired a certified interpreter, Erik Multz, from a professional translation service. Multz translated Agent Malone s questions from English to Remsi and Ms. Spector s answers back from Remsi to English. Agent Malone claims to have compiled an essentially verbatim transcript of the interview as translated by Multz, however Multz attributes several inconsistent responses to Ms. Spector. No audio or video recording was made of the interview. Prior to the interview, Multz had recently fled Remsen because of the activities of the very separatist group, DRB, to which Ms. Spector is accused of diverting funds. Despite extensive efforts, the FBI has been unable to locate Multz and thus cannot produce him as a witness at trial. Ms. Spector has never had the opportunity to cross-examine him. Multz only worked for the government contracted translation agency for two months, he does not hold a U.S. passport, and all contact information the FBI has for him is outdated. Because there does not appear to be any trace of Multz in the United States, the FBI believes that he likely returned to Remsen, his home country. Subsequent to this interview, Ms. Spector travelled to Remsen in While there, she was interrogated by the Remsen National Security Agency (the RIA ). The interrogation was conducted under lawful compulsion in the presence of Ms. Spector s counsel. Ms. Spector provided her RIA interrogators with detailed information about the operations of Bank Plaza 1

9 generally and its practices with respect to raising money for charities based in Remsen in particular. A video recording of the RIA interrogation was leaked to the press and posted to the Internet some months after it took place, reportedly by DRB members who sought to expose Spector as an ally of Western hedonism and corruption. This leak was the first occasion on which the FBI became aware this interrogation had taken place. The recording was the subject of multiple media reports, and it was widely viewed throughout the world. From August 2015 to February 2016, the FBI identified twenty-five purportedly charitable organizations based in Remsen to which Bank Plaza transferred funds. The resulting investigation concluded that most of these charities secretly disbursed a portion of the donations they received to terrorist organizations including DRB. Further FBI investigation developed evidence indicating that Ms. Spector knowingly participated in or directed financial transactions through which various purportedly charitable organizations channeled funds to DRB. On April 11, 2016, Ms. Spector was indicted on the charges currently pending against her. On April 15, 2016, FBI agents went to her home to execute a warrant for her arrest and a search warrant for her home. Ms. was in the midst of entertaining a large group of guests when the agents arrived. The agents announced that they were there to search the house and to take Defendant into custody. Agents directed Defendant to sit in a chair away from the crowd, and two agents stationed themselves next to her while others began to search her home. One of the agents next to Ms. Spector turned to her and loudly said, It s disgusting that you would help funnel money to terrorists who kill their own people and who hate the United States and would use that money to attack us. This country has done so much for you. Look at the life you have here. It s just shameful. Ms. Spector acknowledges that she understood what this agent was 2

10 saying, despite English not being her first language. When the agent made this statement, Ms. Spector, who had not yet received Miranda warnings, looked straight ahead and remained silent. SUMMARY OF ARGUMENT First, admitting an interpreter s translation of a defendants testimony into evidence without the opportunity to cross-examine the interpreter is a violation of a defendant s Sixth Amendment right to be confronted with the witnesses against [her]. A majority of circuits cling to a largely unsupported language-conduit theory, developed under substantially different Confrontation Clause jurisprudence than that to which this Court adheres today, that does not subject an interpreter s translation to the scrutiny of cross examination reasoning that it is properly considered the defendant s own testimony. Under considerations of recent developments in Sixth Amendment doctrine, inconsistencies inherent in the process of translation, and the life-alteringly significant consequences that a particular word can carry in legal determinations, this Court should reject the outdated reasoning of the language-conduit theory in favor of that espoused by the Eleventh Circuit. This court should consider an interpreter the declarant of his own translation, so that a defendant has the opportunity to cross-examine the methods, intentions, and reasoning by which he came to the asserted conclusions, as the court would for any other type of expert imparting his judgment on particular given facts. Second, the use and derivative use of a defendant s testimony, which was compelled by a foreign government, should not be admissible as evidence against them in a criminal trial, even when the testimony was released to the public and the United States did not collaborate with the foreign government that compelled the testimony. Under this Court s precedent, the use of such testimony is precluded in criminal courts when it was compelled under immunity in another jurisdiction. This rule recognizes that the privilege is a right asserted at trial, and that the source of the compelled testimony does not alter a defendant s constitutional right. Also, the Fifth 3

11 Amendment privilege against self-incrimination precludes the use of such testimony because its use would confront defendants with the cruel trilemma of self-incrimination, perjury, or contempt, fail to maintain the criminal justice system as accusatorial, and fail to prevent government overreach. Third, the substantive use of a defendant s post-arrest, pre-miranda silence may not be offered by the government in it s case in chief. The Fifth Amendment right to remain silent is a right wholly separate from the requirements under Miranda. This Court s holding in Miranda and the subsequent Miranda warning requirement were intended to protect the existing right to remain silent. Furthermore, the right to remain silent should trigger once a defendant is placed into police custody, because the right to remains silent is not contingent on whether a defendant has been read the Miranda warnings. Finally, allowing the use of post-arrest, pre-miranda silence in the Government s case-in-chief would fail to uphold the purposes behind the Fifth Amendment, as it would incentivize law enforcement to delay reading Miranda warnings, and expose defendants to self incrimination by asserting their right to silence. ARGUMENT I. ADMITTING AN INTERPRETER S TRANSLATION OF TESTIMONIAL STATEMENTS MADE BY A DEFENDANT IN A FOREIGN LANGUAGE WITHOUT PERMITTING THE DEFENDANT TO CROSS EXAMINE THE INTERPRETER VIOLATES THE DEFENDANT S SIXTH AMENDMENT RIGHT TO CONFRONTATION UNDER CRAWFORD V. WASHINGTON. Admitting Interpreter Multz s English translation of Ms. Spector s testimony in Remsi without the opportunity to cross-examine him is a violation of her Sixth Amendment right to be confronted with the witnesses against [her]. U. S. Const. amend. VI. When Multz translated Ms. Spector s testimony into English, he utilized techniques and imparted judgment akin to that of any other expert whose findings and lab reports are inadmissible absent cross-examination. Thus, Multz is to be properly considered the declarant of his translation, and must be cross-examined 4

12 for his testimonial hearsay to be admissible. Further, even though Ms. Spencer understands some English, her failure to correct Multz s mistakes or inconsistencies during the interrogation does not mean that she tacitly adopted them as her own. If Multz s translations are introduced under a hearsay exception governing statements made by individuals with a relationship of agency or authorization to Ms. Multz, that relationship is too broad to assume that all statements introduced pursuant to it should be legally considered Ms. Spector s own. Moreover, any facts tending to prove reliability of Multz s translation will speak to the weight of that evidence if properly introduced, not to its admissibility under the Confrontation Clause. Finally, categorically considering interpreters the declarants of their translations will not have insufferable consequences for administrability, nor should mere convenience dictate what is or is not within the scope of criminal defendants constitutional rights. A. The Confrontation Clause Bars Un-Confronted Testimonial Statements, Even When They Are Nominally Labeled Not Hearsay By The Federal Rules Of Evidence. Although the Federal Rules of Evidence (FRE) classify certain out of court statements offered for their truth as Not Hearsay, this designation is not sufficient to put these statements out of the reach of the Confrontation Clause. FRE 801(d)(2). Out of court statements offered for the truth of the matter asserted, also known as hearsay, are generally prohibited by the FRE, subject to certain judicially or legislatively created exceptions. See FRE 803 (listing types of admissible hearsay including Excited Utterances, Business Records, and Statements Made for Medical Diagnosis or Treatment ). When a hearsay statement meets an exception, it is admissible evidence under the FRE, but the Confrontation Clause of the Sixth Amendment makes that admissibility contingent on the defendant s ability to cross-examine the declarant of the statement if the statement is testimonial. See United States v. Crawford, 541 U.S. at

13 (holding that the accused has the right to confront and cross-examine witnesses against him regardless of admissibility of statements under the laws of evidence). One such exception to the general ban on hearsay is a category of statements spoken by the party they are offered against, commonly known as a party admission, or by someone in certain types of privity with that party. See FRE 801(d)(2)(A-E). For example, statements made by co-conspirators during and in furtherance of a conspiracy, or statements made by an employee within the scope of an employment relationship, are considered admissible under the FRE. Id. The FRE nominally labels statements falling under this category as Not Hearsay, but mere nomenclature is insufficient to insulate testimony introduced pursuant to Rule 801(d)(2) from the Confrontation Clause s prohibition on un-confronted testimonial hearsay. See Crawford, 541 U.S. at 51 (describing co-conspirator statements as admissible absent confrontation because they are inherently not testimonial, without mention of FRE classification as non-hearsay); Bullcoming v. New Mexico, 564 U.S 647, 669 n.1 (2012) (Sotomayor, J., concurring) ( The rules of evidence, not the Confrontation Clause, are designed primarily to police reliability; the purpose of the Confrontation Clause is to determine whether statements are testimonial and therefore require confrontation. ). Where statements are properly viewed as the defendant's own, as in a true party admission like a police record of a defendant s confession, it follows that the defendant cannot claim that he was denied the opportunity to confront himself. United States v. Orm Hieng, 679 F.3d 1131, 1139 (9th Cir. 2012) (quoting United States v. Nazemian, 948 F.2d 522, (9th Cir. 1991)). However, where the defendant is not the actual declarant of a testimonial statement, and has not manifested assent to the message conveyed, the Confrontation Clause subjects the declarant to cross-examination before the statement may be introduced into evidence. Crawford, 6

14 541 U.S. at 50. This requirement must hold true even for statements that are nominally not hearsay under the FRE, because to hold otherwise would be to hold the terminology of a statute as more authoritative than the United States Constitution. Id. B. An Interpreter Must Be Considered The Declarant Of His Translated Statements, Rather Than The Party For Whom He Is Translating, Due To The Discretion, Contextual Influence, Linguistic Complexities, And Potential For Miscommunication Or Bias Inherent In Translation. The English version of Ms. Spector s Remsi answers to Agent Malone s questions cannot be properly viewed as the Ms. Spectors own and must be attributed to Interpreter Multz as its declarant. If the affidavit merely transcribed Ms. Spector s precise answers to the questions Agent Malone asked her, the writing would be plainly admissible under FRE 801(d)(2)(A), and not subject to the Confrontation Clause. However, Agent Malone could not directly record Spector s assertions. He necessarily relied on Multz s interpretation to produce his record, and thus Spector s testimony was filtered through Multz s discretion, skill, culture, judgment, experience, potential hearing deficiencies, or even bias. (R. at 17-18) Many circuits avoid the constitutional implication that translation creates a second level of hearsay by perfunctorily considering the interpreter a mere language conduit for the defendant s statement. See eg.,united States v. Ushakow, 474 F.2d 1244, 1245 (9th Cir. 1973) (originating the term language conduit without further explanation of the basis of the theory: The record reflects that Carlon was translating and was merely a language conduit between Ushakow and Chicas. Therefore, his testimony is within the same exception to the hearsay rule as when a defendant and another are speaking the same language. ); see also United States v. Shibin, 722 F.3d 233 (4th Cir 2013); United States v. Lopez, 937 F.2d 716 (2d Cir. 1991). The language-conduit theory has reasonable applications where a declarant s message is mechanistically transferred from one person to another. See eg., Germano v. Int'l Profit Ass'n, 7

15 Inc., 544 F.3d 798, 800 (7th Cir. 2008) (Admitting under the language-conduit theory Defendants statements made over the phone to a live communications assistant, who transcribed and transmitted the written statements to Plaintiff who was deaf). However, translation from one language to another cannot be analogized to the simplistic transmission of identical data from one person to another. See United States v. Charles, 722 F.3d 1319, 1324 (11 th Cir. 2013). As the court in Charles observed, Language interpretation does not provide for a one-to-one correspondence between words or concepts in different languages. 722 F.3d at Each act of interpretation requires a subjective, internalized analysis, and an evaluation of the speaker s personal, cultural, and historical context. (R. at 17-18).This is especially true for translation between two languages as distinct as English and Remsi, which lack grammatical, syntactical, or phonological commonalities. Id ( It is very difficult to translate from Remsi to English because of the fundamental differences in the structure of the two languages. Rather than translating individual words, an interpreter translating from Remsi must first hear, understand, and internalize what was said in Remsi, and then attempt to find a way to express the same thoughts in English ). The judgment as to how to best communicate an idea from one language to another is informed by the interpreter s culture, discretion, analysis, and bias, and can vary from person to person, even among experts. See United States v. Romo-Chavez, 681 F.3d 955, 964 (9th Cir. 2012) (Berzon Concurring) ( Even fully competent translators and interpreters disagree that is why there are over ten translations of War and Peace listed for sale by Amazon ); See also (R. at 18) (suggesting that the fact Multz had recently fled Remsen due to the activities of the very separatist group to which Ms. Spector is accused of diverting funds is a persuasive indication of 8

16 a bias that may well have influenced, consciously or otherwise, Multz s translations in a way that favored the Government.). One need not speculate as to the potential for inconsistencies inherent in translation, as several are evident within the text of Agent Malone s affidavit itself. (R. at 19). Because Remsi does not distinguish between singular and plural pronouns, the text contains bizarre attributions to Ms. Spector such as her alleged response to What do you do as the CEO? as We oversee the bank s operations. Id. Without cross-examining Multz, it is impossible to know why he chose I versus we in any of the other numerous locations those pronouns appear, or if he incorrectly attributed personal responsibility to Spector that is more properly shared with a group. Specifically concerning is the question, Is it true that all donations had to first be run by you, because Spector may have understood that you to refer to the charitable unit. Id. at 20. Thus, her response I had to give OK, very well could have meant that we the unit had to give approval. Id. Given the attention the judiciary regularly affords to the meanings of individual words, often with far-reaching legal consequences, it seems inconsistent to disregard the possibility of serious discrepancies in translation in favor of a convenient, but ill-justified theory. See, eg., Bd. of Trustees of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776, 788 (2011) (citing five separate dictionaries to determine the definition of the word of ). Under Crawford and its progeny, any amount of independent judgment or action on the part of an absent witness that may have affected the conveyance of testimonial statements or data is enough to render that testimony inadmissible without the opportunity for cross-examination. See Crawford 541 U.S. 36, Bullcoming 564 U.S. 647; Melendez-Diaz v. Massachusetts 557 U.S. 305 (2009). Most notably, in Bullcoming, a forensic report certifying that the defendant's blood- 9

17 alcohol content exceeded the legal driving limit violated the Confrontation Clause when the analyst who compiled the report was not available for cross-examination. 564 U.S Although another analyst from the same lab was present for cross-examination about the lab s procedures and accuracy, the plurality reasoned that the testifying analyst could neither convey what the certifying analyst knew or observed about the particular test and testing process he employed, nor expose any lapses, lies, or incompetence by the certifying analyst. Id; Davis v. Washington, 547 U.S. 813, 826 (2006) ( We do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition. ). In the case at bar, Multz exercised far more subjective judgment in his interpretation of Spector s statements (and for that matter, Agent Malone s questions too) than did the certifying analyst in Bullcoming, who the New Mexico Supreme Court called a mere scrivener of data from the gas-chromatograph machine. 564 U.S. at 659. As Linguistics Professor Ana Ruma describes, translation from Remsi to English involves not only selecting a properly equivalent word, but rather subjectively drawing subjective inferences that must be properly contextualized through one s personal experiences and cultural background, which may vary by location. (R. at 18). As Judge Falk pointed out in his dissent in the Fourteenth Circuit, it is true that many circuits have continued to apply the language-conduit theory post-crawford. (R. at 7); See eg., United States v. Vidacak, 553 F.3d 344, 352 (4th Cir. 2009) (Citing Nazemian and its progeny). However, this trend is more attributable to technicalities of Ninth Circuit jurisprudence (from which Nazemian was born) than a compelling legal justification. The Ninth Circuit will not revisit its own precedent on the grounds that a Supreme Court case creates tension with it; the 10

18 opinion must be clearly irreconcilable. Miller v Gammie, 335 F3d 889, 900 (9th Cir. 2003) (en banc). Thus, the other circuits that have long relied on Nazemian as a persuasive basis for applying the language-conduit theory have not had the occasion to revisit the doctrine in light of more recent Supreme Court precedent. As a result of the Ninth Circuit s chosen standard of review, recent decisions from that court have had to construe Crawford extremely narrowly to avoid overruling Nazemian. See eg., Orm Hieng, 679 F.3d at 1140 (declining to find a conflict with Crawford on the grounds that Crawford did not address the specific issue of translated statements); see also, Romo-Chavez, 681 F.3d at 955. This type of reasoning has been called into question in multiple concurrences in Ninth Circuit case law. See eg., Orm Hieng, 679 F.3d at 1149 (Berzon, J., concurring) ( Nazemian rests on a pre-crawford understanding of the unity between hearsay concepts and Confrontation Clause analysis); Romo-Chavez, 681 F.3d at 962 (Berzon, J. concurring) (The Ninth Circuit s ultimate conclusion that a translator's out-of-court version of a testimonial statement need not be subject to cross-examination at trial seems in great tension with the holdings of Melendez Diaz and Bullcoming that laboratory reports may not be admitted without testimony by the individuals who conducted the laboratory tests.)(internal citations omitted). That multiple circuits continue applying Nazemian without addressing its clear tension with recent Supreme Court precedent does not speak to the case s perennial wisdom, but rather to the legal inertia that accompanies major paradigm shifts such as the one Crawford represents. 541 U.S. 36 (abrogating Ohio v. Roberts, 448 U.S. 56, 66 (1980) (holding that the Confrontation Clause is primarily concerned with augmenting accuracy in the fact-finding process, and unconfronted hearsay could be admitted if it bore adequate indicia of reliability. ). 11

19 C. Spector Could Not Have Adequately Understood Multz s Statements As To Tacitly Adopt His English Versions Of Her Testimony As Her Own Under 802(d)(2)(B). The language-conduit theory also cannot be justified here as an adoptive party admission. See FRE 802(d)(2)(B). Another declarant s statement may be introduced against a party if that party manifested assent to it. Id. Although Ms. Spector agreed to be interviewed through an interpreter (which raises distinct questions of agency, discussed infra), it cannot be said, that she ever manifested assent to the actual portrayal of her responses in English because she had no way to know if it accurately represented her answers in Remsi. Adoption by silence has traditionally been allowed by courts as a tacit adoption, but it must meet the requirements that (1) a statement made in the party's presence was heard and understood by the party, (2) who was at liberty to respond, (3) in circumstances naturally calling for a response, (4) and the party failed to respond. Jenkins v. Anderson, 47 U.S. 231, 249 (1980)(emphasis added). Here, even if Spector has a working knowledge of English, the fact that she chose the inconvenience of an interpreter suggests she does not have the skills necessary to perfectly understand the nuances of an English translation. It would work counter to the ends of justice to hold that she forfeits her Sixth Amendment rights by silently adopting his version of her truth simply by not correcting any mistakes in real-time. D. Neither An Interpreter s Status As A Defendant s Agent, Nor His Reliability, Bear On A Defendant s Sixth Amendment Right To Confront Him About His Translation Of Her Testimony. This Court should reject a justification for the language-conduit theory based on a relationship of agency between a defendant and the interpreter. See eg.,united States v. Da Silva, 725 F.2d 828, 831 (2d Cir.1983); United States v. Sanchez-Godinez, 444 F.3d 957, 960 (8th Cir. 2006); Lee v. United States, 198 F. 596 (7 th Cir. 1912). A relationship of authorization or agency between the defendant and a declarant merely qualifies the declarant s statement for 12

20 the purposes of admissibility under FRE 801(d)(2)(C) or (D), but neither of these rules specifies that the statement are made somehow in the defendant s voice. Mahlandt v. Wild Canid Survival & Research Ctr., Inc., 588 F.2d 626, 630 (8th Cir. 1978) ( Once agency, and the making of the statement while the relationship continues, are established, the statement is exempt from the hearsay rule so long as it relates to a matter within the scope of the agency. ). Because these hearsay exceptions are written so broadly as to render admissible testimony aimed directly against the defendant, which could never be properly characterized as the defendant s own, Crawford should apply in no less force in this context. The mere fact that an agency relationship exists is not enough to attribute another person s statement to a criminal defendant. Even Da Silva, on which Nazemian relied in its popularized discussion of the agency theory, specifically rejected the characterization of an interpreter's statements as the same as the defendant's own statements. 725 F.2d at 831. The court explained that because, as here, the law enforcement officer could not directly testify to the defendant's answers, his testimony could not be introduced under Rule 801(d)(2)(A) governing party admissions (where there is no Sixth Amendment implication as one cannot be denied the right to cross-examine oneself. Supra.). As explained in Charles, the court in Da Silva recognized that there is a meaningful distinction between a defendant's own statements made directly to the testifying witness (Rule 801(d)(2)(A)) and ones that are merely attributable to him as the defendant's admissions made through the statements of another person to the testifying witness (Rule 801(d)(2)(C) or (D)). 722 F.3d at Both types of testimony are admissible, but only under distinct hearsay rules of evidence because they entail conceptually different views of whether the defendant is the declarant of the statements that are being testified to in court. Id. This distinction highlights why 13

21 a statement made by an agent, though admissible under the FRE, may still be subject to Confrontation Clause requirements even where party admissions are not. Nazemian did not actually ground its decision in one specific hearsay exception, and explored the interpreter-as-agent theory in addition to the pure party admission approach discussed supra. Nazemian left many specifics of the logic utilized rather open-ended, but announced several factors courts should consider to determine whether the interpreter s statements were fairly attributable to the defendant, which have since crystallized into a test for agency applied in the Ninth Circuit and others. See 948 F2d at Although the Nazemian test considers several factors bearing on reliability before admitting an interpreter s translation under Rule 801(d)(2)(C) or (D), this process for verification has no bearing on the constitutionality of an admitted translation under present Confrontation Clause jurisprudence. Melendez Diaz v. Massachusetts, 557 U.S. 305, 319 (2009) ( We would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa. ). In fact, reliability was explicitly rejected as a basis for Confrontation Clause consideration when Crawford overruled the Roberts reliability standard, under which the Nazemian test was developed and popularized. Crawford, 541 U.S. at 61 ( Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to... amorphous notions of reliability. ). In Charles, the Eleventh Circuit correctly synthesized the relationship between evidentiary rules and constitutional protections, and held that because the defendant is not the declarant of the statements made by an interpreter to a testifying third-party witness, the 1 See also Vidacak, 553 F.3d at 352; Romo-Chavez, 681 F.3d at 959 (Considering (1) which party supplied the interpreter, (2) whether the interpreter had any motive to mislead or distort, (3) the interpreter's qualifications and language skill, and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated ) 14

22 Confrontation Clause permits their admission only if the declarant is legitimately unavailable to testify and only if the defendant has had a prior opportunity to cross-examine the declarant. Charles, 722 F.3d 1319, This court would best adhere to its own precedent and further the ends of justice envisioned by the framers by following the Eleventh Circuit s rejection of the language-conduit theory. E. Considering interpreters declarants subject to cross-examination will not pose an undue burden on law enforcement or the judicial process. Petitioners have argued that requiring the interpreter to be present for cross-examination at trial would be unduly burdensome for the administration of justice. (R. at 8). This argument fails for four reasons. (1) Melendez-Diaz and Bullcoming imposed comparable cross-examination requirements on lab technicians, and yet forensic analysis continues to be a routine part of prosecutors cases without such undue burden as to undermine its effectiveness. (2) The entire issue of tracking down and confronting interpreters could be avoided by merely recording the interview. Williams v. Illinois made clear that an expert witness subject to cross-examination may opine on raw data compiled into a report by an absent third party. 567 U.S. 50 (2012). There is no reason that analogously, a third party interpreter couldn t opine on the quality of translation of a recorded conversation. Further, it is unlikely that audio or video recording would substantially deter defendants cooperation with law enforcement, when alternatively a verbatim transcript is produced for the record. (3) The Constitution is governed by principles and values, not by convenience or burden. (4) Defendants have the option to enter stipulations of the prosecution s evidence, and this option remains available to defendants in this context. 15

23 II. THE USE OR DERIVATIVE USE OF A DEFENDANT S COMPELLED TESTIMONY IN A CRIMINAL TRIAL VIOLATES THE FIFTH AMENDMENT WHEN THE TESTIMONY IS COMPELLED BY A FOREIGN SOVEREIGN AND RELEASED TO THE PUBLIC, WITHOUT THE UNITED STATE S INVOLVEMENT, IN THE MIDST OF A THE UNITED STATES INVESTIGATION. The Fifth Amendment privilege against self-incrimination states that [no person] shall be compelled in any criminal case to be a witness against himself, and applies to both citizens and non-citizens alike. See U.S. Const. amend. V; Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953). One of its primary purposes is to avoid confronting witnesses with the cruel trilemma of self-accusation, perjury, or contempt. See Murphy v. Waterfront Comm n of N.Y. Harbor, 378 U.S. 52, 55 (1964). One may assert the privilege during any investigation or proceeding, be it civil, criminal, administrative or judicial. See Hoffman v. United States, 341 U.S. 479, 486 (1951); Blau v. United States, 340 U.S. 159 (1950). This Court should find that the use or derivative use of a defendant s compelled testimony by a foreign sovereign should not be used against them in an American criminal trial because (1) the privilege against self-incrimination precludes the use or derivative use of compelled testimony in criminal trials; (2) the privilege is a right reserved for trial, and; (3) because it furthers the underlying purposes of the Fifth Amendment. A. The Fifth Amendment Privilege Against Self-Incrimination Prohibits The Use Or Derivative Use Of Compelled Testimony In Criminal Trials. The Fifth Amendment privilege against self-incrimination precludes the United States Government from using a witness s compelled and immunized testimony against them in a criminal trial. See Murphy v. Waterfront Comm'n, 378 U.S. 52, 97 (1964). The rule reinforces the protection afforded all persons from coercion or wrongful compulsion. See Wilson v. United States, 162 U.S. 613, 623(1896) (finding that confessions are admissible only if they are made 16

24 freely, voluntarily and without compulsion or inducement of any sort."). Furthermore, it recognizes that this nation s criminal prosecution system is accusatorial, not inquisitorial and that the privilege against self-incrimination is its essential mainstay. Malloy v. Hogan, 378 U.S. 1, 13 (1964) (extending the Fifth Amendment privilege to the states throughout the Fourteenth Amendment). The U.S. Government is precluded from using testimony compelled by foreign nations, just as it is precluded from using testimony compelled by the States. This Court determined long ago that testimony compelled by a foreign nation through coercion is inadmissible at trial. See Bram v. United States, 168 U.S. 532, 548 (1897) (stating that testimony must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight. ). Likewise, in Murphy, this Court s decision prohibited Federal and State Governments from using compelled testimony in criminal trials when the testimony was properly immunized in another jurisdiction. 378 U.S. 52, 97 (1964) (rejecting the established rule that the privilege against self-incrimination does not protect a witness in one jurisdiction from being compelled to give testimony which could be used to convict him in another jurisdiction. ). The protection extends to any disclosures the witness reasonably believes could be used in a criminal prosecution or that could lead to other evidence that might be used against them. See Kastigar v. United States, 406 U.S. 441, 452 (1972) (holding that the explicit proscription of the use of any information directly or indirectly derived from immunized testimony is consonant with Fifth Amendment Standards). Although, Ms. Spector was not unlawfully coerced by Remsen authorities, her statements were compelled through interrogation and under threat of contempt. (R. at 33). The record does not shed light on whether Ms. Spector was offered immunity, but that fact is not dispositive to 17

25 restricting the use of her testimony. See Bram, 168 U.S. at 548. The U.S. Government may assert that its inactivity in the Remsen investigation justifies the use of Ms. Preston s compelled testimony. However, as discussed previously, constitutional precedent precludes the use or derivative use of compelled testimony, regardless of whether the compelling party is the prosecuting party, acknowledging the need to put defendants in substantially the same position as if they had claimed the privilege. See Kastigar, 406 U.S. at 452. The rationale this Court applied to domestic governments is equally applicable to international ones to protect witnesses from the cruel trilemma of self-accusation, perjury, or contempt. See Murphy, U.S. at 55. B. The Privilege Against Self-Incrimination Is A Constitutional Trial Right, Therefore The Right Is Not Altered By The Source Of The Compelled Testimony. The Fifth Amendment privilege against self-incrimination is a right that is asserted at American criminal trials, therefore its application is unaffected by the source of the compelled statements. The right to a fair trial is tantamount to both the Fifth and Sixth Amendment of the Constitution. See Arizona v. Youngblood, 488 U.S. 51, 55 (1988) (holding that a defendant's right to a trial that comports with the Fifth and Sixth Amendments prevails over the governmental privilege to securing evidence); See United States v. Abu Ali, 528 F.3d 210, 248 (4th Cir. 2008). Numerous federal courts have rendered decisions that reinforce domestic trial rights and limit the government s use of testimony from foreign countries. See Brulay v. United States, 383 F.2d 345, 349 n.5 (9th Cir. 1967) (finding that [If] the statement is not voluntarily given, whether given to a United States or foreign officer[ ] the defendant has been compelled to be a witness against himself when the statement is admitted."); See also In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 177, 199 (2d. Cir. 2008) (applying Miranda in an international context based on the logic that a violation of the Fifth Amendment right occurs when a compelled statement is offered at trial in the United States. ); see United States v. Clarke, 18

26 611 F. Supp. 2d 12, 29 ( 2009 D.C. Dist. Ct.) ("The admissibility at trial of statements made overseas to U.S. agents by foreign nationals held in foreign custody is determined by the Fifth Amendment."). Most recently, in United States v. Allen, the Second Circuit precluded the U.S. Government from using compelled testimony when the compelling party was a foreign government. 864 F.3d 63, 82 (2d. Cir. 2017). Allen involved the use of compelled testimony, that had been compelled by British law enforcement, in an American trial court. Id. The court held that allowing the use or derivative use of the testimony would violate the defendants right to a fair trial. The court relied on United States v. Vergo in finding that, unlike the Fourth Amendment, the Fifth Amendment privilege is a fundamental trial right of criminal defendants, and that a constitutional violation occurs only at trial. 494 U.S. 259, 263 (1990) (quotations omitted). Therefore, it follows that regardless of the origin i.e., domestic or foreign a statement cannot be admitted at trial in the United States if the statement was 'compelled. See Allen, 864 F.3d at 82. The government may seek to distinguish this case because the U.S. did not collaborate with the Remsen government to compel Ms. Spector s testimony, as was present in Allen. However, government collaboration does not define the privilege against selfincrimination, as it is an individual right that exists apart from government transgression. See Vergo, 494 U.S. at 263. Furthermore, any added burden on the United States to shield itself from foreign compelled testimony would be justified by the imbalance in power between the US government and an individual defendant, and the policy considerations of the government shoulder[ing] the entire load. See Murphy 378 U.S. at 55. Furthermore, the U.S. Government tacitly acknowledges that the privilege against selfincrimination applies to the direct use of foreign compelled testimony at trial, as it did not 19

27 attempt to admit the leaked video of Ms. Spector s compelled statements into evidence at trial. Surely, a video depicting a defendant s self-incrimination is persuasive evidence that the prosecution would desire to introduce. Thus by not introducing the video, the government implicitly acknowledges that its use would defy constitutional principals. It follows that if the direct use would be prohibited, then so also is the derivative use as there is no difference between use and derivative use under the privilege against self-incrimination. See Kastigar, 406 U.S. at 452 (prohibiting both use and derivative use of compelled testimony based on the Fifth Amendment privilege); see also Murphy, 378 U.S. at 97. C. The Prohibition On The Use And Derivative Use Of Foreign Compelled Testimony Furthers The Underlying Purposes Of The Fifth Amendment. The Fifth Amendment s prohibition on the use and derivative use of compelled testimony applies to foreign countries because it avoids confronting defendants with the cruel trilemma of self accusation, perjury, or contempt, preserves the American criminal system as accusatorial, not inquisitorial, and prevents government overreach. Murphy, 378 U.S. at The Murphy Court coined the phrase cooperative federalism to describe the growing collaboration between Federal and State Governments in prosecuting criminals, and held that the basic policies of the Fifth Amendment would be invalidated if the Court allowed persons to be whipsawed into incriminating themselves in multiple jurisdictions. Id. The same truth which compelled the Murphy court then rings even truer today. Ms. Spector was faced with the cruel trilemma when she was compelled to provide testimony to the Remsen government under threat of contempt, not knowing whether that 2 Id. The Murphy majority identified seven basic policies advanced by the Fifth Amendment: (1) protecting witnesses from the cruel trilemma of self-accusation, perjury or contempt; (2) the accusatorial nature of criminal prosecution; (3) the fear of coercion through inhumane treatment and abuses; (4) the need for government to shoulder the entire load" in criminal prosecutions; (5) the individual s right "to a private enclave where he may lead a private life;" (6) the distrust of self-deprecatory statements, and; (7) that the privilege is often "a protection to the innocent." 20

28 information could be used against her in the United States. (R. at 3). Governments across the world are collaborating more than in any time in human history, making it increasingly likely that more defendants will face the cruel trilemma absent the protection provided by the privilege. See United States v. Balsys, 524 U.S. 666, 717 (1998) (noting trends where collaboration between international prosecutors and police forces may be as great today as among the States. ). The world is fast becoming a global society, making it far easier for the United States to prosecute persons in other countries. Id. Therefore the privilege against selfincrimination must be guarded even more closely now than ever. In Balsys, the majority discussed the same sovereign doctrine, which states that the compelling party must be the same as the prosecuting party in order for the privilege against selfincrimination to apply. However, the instant case is distinguishable from Balsys because the United States is the sovereign attempting to use the testimony, and is precluded from using compelled testimony at trial, therefore the same sovereign principle has no force. See Allen, 864 F.3d at 82. The term cooperative internationalism was first introduced in Balsys, in which the majority recognized that collaboration between the United States and other countries to prosecute crime may confront defendants with the cruel trilemma and fail to prevent government overreach. Id. Although Balsys did not adopt the theory, the Court was not blind to the dangers inherit in allowing one government to do another s investigating: in fact, it foresaw it. Id. at (foreseeing a future where the prosecution was as much on behalf of the United States as of the prosecuting nation, so that the division of labor between evidence-gatherer and prosecutor made one nation the agent of the other. ). 21