Supreme Court of the United States

Transcription

1 No In The Supreme Court of the United States THE UNITED STATES OF AMERICA, v. Petitioner, VICTORIA SPECTOR, Respondent. On Writ Of Certiorari To The Court Of Appeals For The Fourteenth Circuit Counsel for Petitioner Team 24 BRIEF FOR PETITIONER

2 QUESTIONS PRESENTED Whether the Sixth Amendment right to confrontation under Crawford v. Washington is violated by admitting a foreign-language interpreter s English translation of defendant s nonhearsay statements? Whether the district court improperly concluded that the Fifth Amendment s prohibition against the use or derivative use of the 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 a United States investigation? Whether the admission of evidence of a defendant s selective silence in response to a noninterrogatory comment by an officer, while in custody but prior to a timely Miranda warning, violates the Fifth Amendment? i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... Page i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... v STATEMENT OF THE CASE I. The investigation of Bank Plaza and the interview of Victoria Spector by the Federal Bureau of Investigation (FBI)...1 II. III. IV. The Interrogation of Victoria Spector by the Remsen National Security Agency...3 The Arrest of Victoria Spector...4 Procedural History and Rulings Presented for Review...4 SUMMARY OF ARGUMENT... 5 ARGUMENT I. The Court of Appeals for the Fourteenth Circuit incorrectly concluded that a foreignlanguage interpreter s translation violates the Confrontation Clause because translated statements fall under the category of statements that are not hearsay...7 A. Under the Language Conduit Theory, the Interpreter s statements are considered to be those of the Defendant Which Party Provided the Interpreter Motive to Mislead Language Skill Corroboration II. III. Core principles of agency law support the admissibility of the translated statements as agent admissions no matter the declarant Crawford can be reconciled with the language conduit theory or agency approaches because the Sixth Amendment has no application where the defendant is the speaker...15 ii

4 IV. Reaching a different result would create separate standards for those individuals who are foreign-language speakers and those who are not...16 V. The Fifth Amendment privilege against self-incrimination does not require derivative use immunity for statements compelled by a foreign sovereign because the government s interest in obtaining testimony outweighs the individual s privilege against self-incrimination when the statements are compelled abroad...18 A. The decision below conflicts with the Court s precedent which held that the source of compulsion is relevant when the United States seeks to introduce evidence derived from compelled statements at trial From transactional immunity to use and derivative use immunity: the increasing risk of interference with federal cases posed by foreign sovereigns necessitates a reduction in the scope of the privilege A narrow interpretation of the scope of the privilege against self-incrimination is necessary regarding testimony compelled by a foreign sovereign Statements compelled by a foreign sovereign must receive direct use immunity only in order to maintain a balance between the interests of the government and the interests protected by the privilege against self-incrimination...23 B. The Defendant s testimony was lawfully compelled by a foreign sovereign without the United States involvement and revealed to the public; therefore derivative use immunity must not be applied to the Defendant s testimony...24 VI. VII. Where the federal government lacks the authority to grant witnesses immunity, the privilege must yield to the government s interest in obtaining testimony...26 The application of derivative use immunity to testimony compelled by a foreign sovereign does not leave the government and the defendant in the same position as if the defendant had invoked their right to remain silent...27 VIII. The Fifth Amendment s protection against the introduction of a defendant s compelled testimony in evidence does not apply to a defendant s silence immediately after arrest and prior to a timely Miranda warning...28 A. The FBI agent s single appeal to the Defendant s conscience is not the functional equivalent of interrogation...29 B. The Defendant s selective silence during, and immediately after her arrest are not protected by the Fifth Amendment because moving her away from other guests is not government action that induces silence...31 iii

5 CONCLUSION...32 APPENDIX iv

6 CASES TABLE OF AUTHORITIES Page Bullcoming v. New Mexico, 564 U.S. 647 (2011) Camerlin v. Palmer Co., 92 Mass. (10 Allen) 539 (1865) Commonwealth v. Vose, 157 Mass. 393 (1892)... 13, 14 Correa v. Superior Court, 27 Cal. 4th 447 (2002) *Counselman v. Hitchcock, 142 U.S. 547 (1892) *Crawford v. Washington, 541 U.S. 36 (2004)... passim Doyle v. Ohio, 426 U.S. 610 (1976) Fabrigas v. Mostyn, 20 Howell s State Trials , 123 (England 1773) Feldman v. United States, 322 U.S. 487 (1944) Fletcher v. Weir, 455 U.S. 603 (1982) Florida v. Meacham, 45 Fla. 71 (1903) Germano v. Int l Profit Ass n, 544 F.3d 798 (7th Cir. 2008)... 8, 16 Hale v. Henkel, 201 U.S. 43 (1906) In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 177 (2nd Cir. 2008) Kalos v. United States, 9 F.2d 268 (8th Cir. 1925)... 9 *Kastigar v. United States, 406 U.S. 441 (1972)... passim Knapp v. Schweitzer, 357 U.S. 371 (1958) Malloy v. Hogan, 378 U.S. 1 (1964) Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)... 8 Miranda v. Arizona, 384 U.S. 436 (1966)... passim *Murphey v. Waterfront Comm n of N.Y. Harbor, 378 U.S. 52 (1964) People v. Chin Sing, 242 N.Y. 419 (1926) People v. Morel, 8 Misc. 3d 67 (2005) People v. Romero, 581 N.E.2d 1048 (N.Y. 1991) People v. Torres, 213 Cal. App. 3d 1248 (1989) Pillsbury Co. v. Conboy, 459 U.S. 248, 252 (1983) Poole v. Perinni, 659 F.2d 730 (6th Cir. 1981)... 8 Rhode Island v. Innis, 446 U.S. 291 (1980)... 29, 30 v

7 Roberts v. United States, 445 U.S. (1980) Sullivan v. Kuykendall, 82 Ky. 483 (1885) Tennessee v. Street, 471 U.S. 409 (1985) *United States v. Allen, 864 F.3d 63 (2d Cir. 2017) United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985)... 9 *United States v. Balsys, 524 U.S. 666 (1998) , 26, 27 United States v. Beltran, 761 F.2d 1 (1st Cir. 1985)... 8, 9, 11 United States v. Budha, 495 F. App x 452 (5th Cir. 2012) United States v. Byrd, 765 F.2d 1524 (11th Cir. 1985) United States ex rel. Catena v. Elias, 449 F.2d 40 (3rd Cir. 1971) United States v. Charles, 722 F.3d 1319 (11th Cir. 2013) United States v. Curbelo, 726 F.3d 1260 (11th Cr. 2013) United States v. Da Silva, 725 F.2d 828 (2d Cir. 1983)... 8, 14 United States v. Frazier, 408 F.3d 1102 (8th Cir. 2005)... 28, 31, 32 United States v. Garcia, 16 F.3d 341 (9th Cir. 1994) *United States v. Gecas, 120 F.3d 1419 (11th Cir. 1997) United States v. Gooding, 25 U.S. 460 (1827) United States v. Karake, 443 F. Supp. 2d 8 (D.D.C. 2006) United States v. Lafferty, 387 F. Supp. 2d 500 (W.D. Pa. 2005) United States v. Lopez, 937 F.2d 716 (2d Cir. 1991) United States v. Love, 767 F.2d 1052 (4th Cir. 1985) United States v. Martinez-Gayton, 213 F.3d 890 (5th Cir. 2000)... 8, 12 *United States v. Murdock, 284 U.S. 141 (1931) United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991)... passim United States ex rel Negrón v. New York, 434 F.2d 386 (2nd Cir. 1970) United States v. Orm Hieng, 679 F.3d 1131 (9th Cir. 2012)... 8, 15 United States v. Osuna-Zepeda, 416 F.3d 838 (8th Cir. 2005)... 28, 31, 32 United States v. Payne, 954 F.2d 199 (4th Cir. 1992)... 30, 31 United States v. Romo-Chavez, 681 F.3d 955 (9th Cir. 2012) United States v. Rivera, 944 F.2d 1563 (11th Cir. 1991) vi

8 United States v. Sanchez-Godinez, 444 F.3d 957 (8th Cir. 2006)... 8, 9 United States v. Shibin, 722 F.3d 233 (4th Cir. 2013)... 11, 15 United States v. Solomon, 509 F.2d 863 (2nd Cir. 1975) United States v. Seiffert, 501 F.2d 974 (5th Cir. 1974) United States v. Ushakow, 474 F.2d 1244, 1245 (9th Cir. 1973)... 8 United States v. Whitehead, 200 F.2d 634 (9th Cir. 2000) *United States v. (Under Seal), 794 F.2d 920 (4th Cir. 1986)... 25, 27 Constitutional Amendments U.S. Const. Amend. V... passim U.S. Const. Amend. VI... passim Federal Statutes 18 U.S.C. 2339B (2015) U.S.C (2002) U.S.C (1994) U.S.C (2011)... 11, 15 Federal Rules FED. R. EVID. 801(d)(2)(A)... 15, 16 FED. R. EVID. 801(d)(2)(B)... 15, 16 FED. R. EVID. 801(d)(2)(C)... 8 FED. R. EVID. 801(d)(2)(D) FED. R. EVID. 801(d)(2)(E) Other Sources Casen B. Ross, Clogged Conduits: A Defendant s Right to Confront His Translated Statements, 81 U. CHI. L. REV. 1931, 1933 (2014)...17 Gregory O. Tuttle, Cooperative Prosecution and the Fifth Amendment Privilege Against Self- Incrimination, 85 N.Y.U. L. Rev. 1346, 1347 (2010)...27 G. Gilbert Evidence 216 (C. Lofft ed. 1791)...15 J. Weinstein & M. Berger, Weinstein s Evidence (1984)...8 Neal Modi, Toward an International Right Against Self-Incrimination: Expanding the Fifth Amendment s Compelled to Foreign Compulsion, 103 Va. L. Rev. 961, 1000 (2017)..18, 19, 24 Peter Weston, Self-Incrimination s Covert Federalism, 11 Berkeley J. Crim. L. 1, 26 (2006)...26 vii

9 Restatement 2d of Agency 392 (1958)...14 Restatement 3d of Agency 1.01 cmt. h (2006)...14 viii

10 STATEMENT OF THE CASE I. The Investigation of Bank Plaza and the Interview of Victoria Spector by the Federal Bureau of Investigation (FBI) In March 2014, the Federal Bureau of Investigation ( FBI ) opened an investigation into Bank Plaza, the American subsidiary of the National Bank of Remsen, after agents were tipped that the bank was funneling money to terrorists. (R. at 13). Specifically, the anonymous source indicated that Bank Plaza was indirectly sending money to the Remsen-based terrorist group known as DRB. (R. at 13.) DRB is notorious for their numerous violent acts and have been designated a threat to the national security of the United States. (R. at 12.) Through the tip, the FBI learned that Bank Plaza s CEO, Victoria Spector, directed the bank to divert purported charitable funds to the DRB. (R. at 13.) The source alleged that Spector, a Remsen-national, had disguised the operation to appear as if the donations were meant to improve the living conditions for underprivileged Remsen citizens. (R. at 13.) But instead of improving the living conditions for underprivileged Remsen citizens, the funds were used to acquire weapons and institute militarystyle training camps. (R. at 13.) Several months later, Special Agent Serg Beda requested an interview with Spector. (R. at 13.) She agreed. (R. at 13.) Because Spector is more proficient in Remsi than she is in English, the FBI requested a certified Remsi Interpreter be present at the interview. (R. at 3.) Subsequently, the FBI procured Erik Multz of Boerum Certified Translators, Inc., to interpret the interview. (R. at 13.) Although he had no more than two months of experience as a translator, Multz, a native Remsen, worked for a highly reputable professional translation service and was Boerum certified. (R. at 13.) Boreum certification requires passing both written and oral examinations. (R. at 13.) Nearly a month after originally agreeing, on June 25, 2014, the FBI interviewed Spector. (R. at 13.) Spector requested the interview not be recorded. (R. at 13.) Present at the interview 1

11 was Spector, Special Agent Jack Malone, Special Agent Serg Beda, and Mr. Multz. (R. at 13.) Agent Malone conducted the interview. (R. at 13.) He would ask the questions in English and Multz would then translate the questions into Remsi. (R. at 13.) Spector seemed to comprehend the questions being asked as she never objected and her answers were responsive to the questions. (R. at ) When asked who authorized the donations, Spector conceded that she had the final say: I had to give OK. Of Course, I want to comply with all US laws, so we made sure to keep a very good record. (R. at 20.) Upon conclusion of the interview, Special Agent Malone drafted an essentially verbatim transcript of the questions and the translated responses. (R. at 3.) Shortly after, Mr. Multz, through no fault of the government or the Defendant, could not be found. (R. at 13.) Various efforts were used to locate him, but to no avail. (R. at 13.) Mr. Multz has no U.S. passport and the FBI has no other method of contacting him. (R. at 13.) Because there was no trace of him in the United States, the FBI is of the belief that Multz returned home to Remsen. (R. at 13.) Accordingly, the government was unable to produce Mr. Multz for trial. (R. at 3.) II. The Interrogation of Victoria Spector by the Remsen National Security Agency After the Defendant s interview, the FBI s investigation became dormant. (R. at 13.) In the interim, Defendant returned to Remsen to visit both her family and friends. (R. at 31.) While in Remsen, the Defendant was interrogated under lawful compulsion by the Remsen National Security Agency ( RIA ) in the presence of Defendant s counsel. (R. at 3.) Specifically, the Remsi government told the Defendant that she would be held in contempt in Remsen if she refused to submit to interrogation. (R. at 31.) However, the Appellee was not tortured. (R. at 35.) Nor was she in custody. (R. at 35.) At the pre-trial hearing, the Defendant conceded that her statements to Remsen authorities were voluntary. (R. at 35.) Months after the interrogation took place and the 2

12 FBI s investigation was well underway, a video recording of the Defendant s interrogation by the RIA was leaked to the press and posted on the internet. (R. at 3, 33.) FBI agents were unaware that an interrogation had taken place or that it was recorded until it was released. (R. at 14.) During the interrogation, the Defendant provided the RIA with information about the operations of Bank Plaza and its practices regarding raising money for charities based in Remsen. (R. at 3.) The recording received international media attention. (R. at 3.) However, the FBI Special Agent Serg Beda and the other agents involved with the investigation of Bank Plaza avoided viewing the recording. (R. at 14.) III. The Arrest of Victoria Spector On April 15, 2016, the Defendant was hosting approximately fifty guests when FBI agents arrived at her home to execute an arrest warrant and a search warrant. (R. at 3.) The Defendant was arrested and was seated away from her guests with two FBI agents positioned next to the Defendant. (R. at 3, 15.) FBI agent Maria Amaray, who was next to the Defendant, opined: 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. (R. at 3, 15.) Many of the guests could hear the agent s remark. (R. at 4.) The Defendant looked straight ahead and did not say anything in response to the agent s opinion. (R. at 4, 15.) Special Agent Serg Beda then immediately read the Defendant her Miranda warning. (R. at 15.) IV. Procedural History and Rulings Presented for Review On April 11, 2016, the Defendant was charged in an indictment with conspiring to provide, and providing, material support to a designated foreign terrorist organization in violation of 18 U.S.C. 2339B. (R. at 2-3, 14.) The Defendant brought three motions in limine in the District 3

13 Court: (1) to exclude translated statements by the Defendant because the interpreter, through no fault of the government, is unavailable to testify at trial; (2) to require the government to establish, at a Kastigar hearing, an independent source for all evidence it intended to offer against the Defendant at trial; and (3) to exclude any mention of Defendant s post arrest pre-miranda silence in the prosecution s case-in-chief. (R. at 2-3.) Defense counsel submitted an affidavit in support of his motion in limine to suppress the evidence. (R. at 17.) Using a Boreum University Professor of Linguistics as a reference, defense counsel argued that Remsi is unlike any other language because it is inherently subjective and draws upon the speaker s personal experiences and cultural background. (R. at 17.) Because of the difficulties translating Remsi, defense counsel argued that Multz translation produce inconsistencies. (R. at 18.) Additionally, based on her own investigation and without any evidence, defense counsel suggests Multz was biased toward her client because the DRB was the reason Multz left Remsen. (R. at 18.) The district court granted all three of the Defendant s motions. (R. at 50.) After conducting a Kastigar hearing on August 25, 2016, the district ourt precluded the Government from offering any evidence it developed after the recording of the Defendant s compelled testimony was publicly released. (R. at 53.) The Government then brought an interlocutory appeal from the ruling of the District Court in the United States Court of Appeals for the Fourteenth Circuit pursuant to 18 U.S.C (R. at 2.) The Court of Appeals for the Fourteenth Circuit affirmed the District Court s ruling and held that the District Court was correct to exclude the translator s statements and testimony about Defendant s post arrest, pre-miranda silence. The Fourteenth Circuit also held that the district court was correct to grant derivative use immunity to the Defendant and that a Kastigar hearing was proper. (R. at 6.) The United States now brings this appeal. 4

14 SUMMARY OF ARGUMENT At the outset, general notions of reliability have always controlled the admissibility of evidence. However, that principle no longer exists post-crawford. Now, the Confrontation Clause bars the introduction of testimonial hearsay against a criminal defendant unless the accused has an opportunity to cross-examine the witness. Amorphous notions of reliability alone are no longer sufficient. Effectively, Crawford redefined how courts interpret the Sixth Amendment s Confrontation Clause. But the Supreme Court did not close the door on all exceptions, most notably firmly-rooted hearsay exceptions. One firmly rooted hearsay exception is statements that do not fit within the definition of hearsay. At common law, such statements were admissible based on principles of agency. When two parties both consented to the use of a translator, the translated statements were admissible in evidence against either party. That same principle still exists today. There is now a presumption of agency when determining the admissibility of out-of-court translations. Unless there is some reason to believe that the statements are inaccurate or the interpreter had an ulterior motive to fabricate the translation, an agency relationship is found to exist. Once established, such statements are admitted freely as agency admissions, and, as such are attributed directly to the defendant. Consistent with that principle, the Federal Rules of Evidence holds that all admissions by a party opponent are non-hearsay. Consequently, if no evidence can negate the presumption of agency, out-of-court translations will not violate Crawford because a criminal defendant cannot complain he was not granted the opportunity to cross-examine himself. Next, when determining whether use and derivative use immunity should be applied to compelled testimony, the Court weighs the Government s interest in obtaining the witness s testimony against the witness s privilege against self-incrimination under the Fifth Amendment. 5

15 Application of derivative use immunity to testimony compelled by a foreign sovereign places a high burden on United States prosecutors who are required to prove, at a Kastigar hearing, that any evidence they intend to offer at trail has been developed from a basis independent of testimony compelled by a foreign sovereign. Providing an independent basis for all of the government s evidence will be impossible in cases such as this one, where the defendant s testimony has been: (1) compelled by a foreign sovereign; (2) released to the public; (3) without the involvement of the United States; and (4) in the midst of a United States investigation. Therefore, the Defendant s pre-trial motion in limine to give Defendant s statements to Remsen investigators derivative use immunity should have been denied for three reasons. First, the district court improperly held that to allow evidence derived from such statements might result in the right against self-incrimination being compromised in a variety of untraditional circumstances. Allowing evidence derived from a defendants statements, when compelled by a foreign sovereign, will not compromise the privilege; rather, excluding such evidence will allow foreign powers to undermine criminal cases in the United States. Second, where the federal government lacks the authority to grant witnesses immunity, the privilege must yield to the government interest in obtaining testimony. The privilege is coextensive with a court s authority to compel testimony and enforce immunity orders. Thus, a requirement that use and derivative use immunity be applied to testimony compelled by a foreign sovereign assumes that federal courts have the power to compel testimony and enforce grants of immunity in the United States and abroad which they do not. And third, derivative use immunity is intended to ensure that the government and the defendant are left in the same position as if the defendant had invoked their privilege against selfincrimination and the compelled testimony had never been revealed. Applying derivative use 6

16 immunity to a defendant s testimony that was compelled by a foreign sovereign and released to the public, without the United States involvement, in the midst of the United States investigation, does not leave the government and the defendant in the same position. And finally, testimony concerning the Defendant s post arrest, pre-miranda silence should be admissible in the prosecution s case-in-chief. The Defendant s selective silence in the face of an isolated accusation of guilt soon after arrest is not protected by the Fifth Amendment because the Defendant was not subject to interrogation or its functional equivalent. Also, government action, during and immediately after arrest, must be significant enough to induce a defendant s silence this is not the case here. The Defendant s post arrest, pre-miranda silence can, therefore, be used by the prosecution in their case-in-chief. ARGUMENT I. The Court of Appeals for the Fourteenth Circuit incorrectly concluded that a foreignlanguage interpreter s translation violates the Confrontation Clause because translated statements fall under the category of statements that are not hearsay The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to be confronted with the witnesses against [them]. U.S. Const. amend. VI. The right, however, is not absolute. Crawford v. Washington, 541 U.S. 36, 59 (2004). Like other constitutional amendments applicable in the criminal context, the Confrontation Clause has limited application. See Miranda v. Arizona, 384 U.S. 436, 444 (1966) (holding Miranda rights attach during custodial interrogation). Sixth Amendment protections concern only testimonial hearsay made by an unavailable declarant without a present or prior opportunity for cross-examination. Crawford, 541 U.S. at 59. When a statement is neither testimonial nor hearsay, there exists no right to confrontation. Id. A. Under the Language Conduit Theory, the Interpreter s statements are considered to be those of the defendant. 7

17 Testimony about an English translation of a defendant s statements does not violate the Confrontation Clause if the interpreter was acting as a language conduit. See United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991). The prevailing view among jurisdictions is that an interpreter is not the person making the underlying statements. See United States v. Ushakow, 474 F.2d 1244, 1245 (9th Cir. 1973); United States v. Beltran, 761 F.2d 1, 9 (1st Cir. 1985); United States v. Da Silva, 725 F.2d 828, 831(2d Cir. 1983); United States v. Martinez-Gayton, 213 F.3d 890, (5th Cir. 2000); United States v. Sanchez-Godinez, 444 F.3d 957, 960 (8th Cir. 2006); Germano v. Int l Profit Ass n, 544 F.3d 798, 803 (7th Cir. 2008). Rather, the words of the translator become the words of the defendant. Nazemian, 948 F.2d at 526 (citing Poole v. Perinni, 659 F.2d 730 (6 th Cir. 1981)). The translator is seen as merely a relay and, as such, the translated statements constitute authorized vicarious admissions of the defendant under the Federal Rules of Evidence. Id. at 527. FED. R. EVID. 801(d)(2)(C)-(D). Conversations requiring an interpreter are therefore properly seen as if the defendant had directly conversed in the same language. See United States v. Orm Hieng, 679 F.3d 1131, 1139 (9th Cir. 2012) ( A defendant and an interpreter are treated as identical ). But the language conduit theory does not presume that all out-of-court translations are admissible. 4 J. Weinstein & M. Berger, Weinstein s Evidence para. 801(d)(2)(c)[01] at n. 34 (1984) ( the statement is admitted as an admission unless circumstances are present which would negate the presumption of agency. ). Courts have established necessary procedures to prevent those with an incentive from alter[ing] the evidence in a manner favorable to the prosecution. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 318 (2009). To ensure reliability, courts, on a case-by-case approach, analyze four distinct factors: (1) which party supplied the interpreter; (2) whether the interpreter have a motive to lie; (3) the interpreter s qualifications and 8

18 linguistic skills; and (4) whether subsequent actions were consistent with the translated statements. Nazemian, 948 F.2d at 527. If there exists any reason to doubt the accuracy of the translation, the presumption in favor of admissibility ceases to exist. Beltran, 761 F.2d at 9. But when there exists no motive to mislead and no reason to believe the translation is inaccurate, the language conduit theory holds true. See e.g., Kalos v. United States, 9 F.2d 268, 271 (8th Cir. 1925) (negating agency relationship where co-defendant translated the statements and appeared to be scapegoating the defendant). Applying the four-factor test in this case, it is clear the evidence weighs in favor of admissibility 1. Which party provided the interpreter The fact that the FBI hired the translator is not dispositive. See United States v. Alvarez, 755 F.2d 830, 859 (11th Cir. 1985) (admitting translations made by an undercover agent). Erik Multz is a certified Remsi interpreter who works for a prestigious independent translation firm entirely separate from the FBI. The fact that it was the government, not the defendant, who asked for a Remsi translator does not suggest impartiality. Nor does a history between Boerum Certified Translators, Inc. and the FBI. A continuous working relationship simply provides context that the FBI believed the translation service has been consistently provided competent interpreters. If courts have allowed special agents to act as both an interpreter and interrogating officer, it logically follows that an independent translation service provider should not preclude treating Multz and the defendant as one. Sanchez-Godinez, 44 3d at Motive to Mislead No evidence exists that suggests the Multz had any motive to mistranslate during the interview. Spector nevertheless suspects foul play based on his own investigation. (R. at 18). In his motion and at the hearing, defense counsel claims that Multz was inherently biased against 9

19 Spector for providing funds to the DRB. Relying on an unsubstantiated rumor, he posits that Multz had just recently fled Remsen because of the DRB s influence. Yet, he points to no witness or other tangible evidence that might verify his assertion. In fact, there is nothing in the record to indicate Multz knew anything about the case.. In the absence of specific evidence of motive, conclusory allegations of bias are insufficient to deny a translator is not a language conduit. United States v. Garcia, 16 F. 3d 341, 343 (9 th Cir. 1994) (rejecting defendants claim where the only evidence of motive to mislead or distort by interpreter who was a coconspirator was purely speculative) Even if it were true, precluding a translation based on acts of a terrorist group whose actions affect an entire country in an unstable part of the world would be over-inclusive. (R. at 2.) Considering the low number of Remsi speakers in America, limiting the scope to interpreters who have not been affected by the DRB would be an unworkable standard. Most, if not all, certified Remsi translators could be excluded under such a rule. To constitute bias, a more substantial nexus is required. E.g., People v. Romero, 581 N.E.2d 1048, 1051 (N.Y. 1991) (finding motive to lie where informant was paid if case resulted in prosecution) 3. Language Skill Despite Boerum certification, Spector argues that Multz was not a competent interpreter. Her grievances rest on Multz s two-months of experience and some minor inconsistencies in the translation. But the language conduit theory is not focused with an interpreter s certification or language degree. It focuses only on one thing: competency. Nazemian, 948 F.2d at 528 (applying language conduit theory despite no formalized evidence of the interpreter s competence, such as language degrees or certifications. ). Nevertheless, the defendant argues for a standard higher than 10

20 that used by federal courts. 28 U.S.C. 1827(b) (2011) (outlining the federal court requirements that a translator be certified or otherwise qualified). Defendant s argument overlooks the fact that Multz has spoken Remsi his entire life. It is his native language. Cf. United States v. Romo-Chavez, 681 F.3d 955, 964 (9th Cir. 2012) (Berzon, J. dissenting) (holding admissible non-fluent officer s translated statements notwithstanding lack of education or knowledge of grammar rules). The inconsistencies that Defendant complains of can just as easily be attributed to a difference in personal experiences. (R. at 18.) Even still, Defendant does not explicitly complain that the translation is inaccurate. Rather, Defendant only challenges the translation of one word that has two meanings in an unique language that depends on gender, age, and closeness of relationship. (R. at 21.) It should not matter that the difference between I and We in this case can be the difference between criminal liability. This Court s decision affects all languages. The law governing admissibility of out-of-court translated statements should not turn on one word from a subjective language that language experts concede is very difficult, if not impossible, to translate directly. (R. at 18.) So long as a translation is generally consistent, minor inconsistencies are to be overlooked. Id. at 964. Beltran, 761 F.2d at 9 (holding that inaccuracies goes towards weight of the evidence, not admissibility). 4. Corroboration As to the fourth factor, although this case does not concern forward looking statements, there is ample corroborating evidence from which to conclude the translation was accurate. First, there was a constant dialogue and at no point did it seem that the defendant was confused.. The defendant s answers were consistent with the agent s questions and vice versa. Compare United States v. Shibin, 722 F.3d 233, 248 (4th Cir. 2013) ( Salad Ali did not have any difficulty 11

21 understanding the questions. ) with Martinez-Gayton, 213 F.3d at 893 ( Appellant refused to sign any confession despite having ostensibly just confessed to Garza. ). Additionally, the information revealed in the RIA recording proved that Defendant knew about the undercover, charitable-fund operation. Her disclosures corroborated the substance of the translated statements: that she was in charge of the operation. E.g. Correa v. Superior Court, 27 Cal. 4th 447, 453 (2002) (relying on translated statements that helped find defendant and tended proved other evidence). Considering that the defendant was unaware she was even being recorded, its seems then that her revelations to the RIA support the notion that the translated statements were reliable despite minor inconsistencies. Therefore, without any evidence to support the opposite conclusion, the Court should adopt the language conduit theory and hold that Defendant was the declarant of the translated statements. II. Core Principles of Agency Law Support the Admissibility of the Translated Statements As Agent Admissions No Matter the Declarant When two people who speak different languages choose an interpreter to communicate, the interpreter is regarded as the parties joint agent for that sole purpose. Correa, 27 Cal. 4th at note 4 (quoting People v. Torres, 213 Cal. App. 3d. 1248, 1258 (1989)). At common law, an interpreter s translation of what was said could be received in evidence by a witness so long as he was present during the communication in question. Fabrigas v. Mostyn, 20 Howell s State Trials , 123, 123 (England 1773). Even without any understanding of what was said, such evidence was clearly admissible. Id. (noting subsequent events corroborated the translation). Even when there were discrepancies, courts took the approach that statements made through such interpreter to him as to what she said are to be taken to be truly stated. Camerlin v. Palmer Co., 92 Mass. (10 Allen) 539, (1865). Put in modern terms, such statements were considered 12

22 admissions and, thus, did not violate the rules of law excluding hearsay evidence. Id.; FED. R. EVID. 801(d)(2)(D). Even when the interpreter was unavailable, courts placed no limits on the rules application in criminal prosecutions. See People v. Chin Sing, 242 N.Y. 419, (1926); cf. Florida v. Meacham, 45 Fla. 71, (1903) (noting out-of-court translation was not hearsay). When an interpreter was selected by the person who made the statement, testimony of the English translation could be admitted if the statement was offered against the party who made the statement. See also Sullivan v. Kuykendall, 82 Ky. 483, 489 (1885) ( [W]here one, through an interpreter, makes statements to another, the interpreter s statement, made at the time, of what was so said, is competent evidence against the party. ). In Chin Sing, two translators failed to testify at trial regarding their translations of an interrogation between the officers and the defendant.. Chin Sing, 242 N.Y. at Although ultimately ruling in favor of exclusion, the New York Court of Appeals identified one clear exception: [T]he only cases cited by the people to sustain the admission of such evidence are cases where the interpreter had been selected by common consent of the parties endeavoring to converse or by the party against whom the statements of the interpreter were offered in evidence, and in such cases it was naturally held that the party against whom the statements were offered in evidence had made the interpreter his agent, and therefore within the ordinary rules of principal and agent was bound by his statements which could be proved by a third party. Id. at (citations omitted). Supporting that rationality, in Commonwealth v. Vose, the Supreme Judicial Court of Massachusetts affirmed a conviction for committing an abortion. 157 Mass. 393, (1892). The defendant spoke only English, a language which the only testifying witness found unfamiliar. Id. at 393. Overruling the defendant s exceptions, the court found that the interpreter was deemed the joint agent of both parties: 13

23 They wish to communicate with each other, they choose a mode of communication, they enter into conversation, and the words of the interpreter, which are their necessary medium of communication, are adopted by both, and made a part of their conversation as much as those which fall form their own lips. They cannot complain if the language of the interpreter is taken as their own by any one who is interested in the conversation. Id. Properly understood, the translator s relation to the principal is one of agency. Restatement (Third) of Agency, 1.01 cmt. h (2006). Once a defendant has consented to the use of an interpreter, an agency relationship is formed and the words of the interpreter can be admitted against the defendant as non-hearsay. Id (noting agency relationship is formed when a principal manifests assent that the agent act on his behalf); see also Da Silva, 725 F.2d at 832 (citing Restatement (Second) of Agency 392 (1958) (dual agency permitted)). Consistent with the rules of agency, an agency relationship was established between Defendant and Multz. After agreeing to be interviewed, the Defendant had nearly a month to prepare. At no point prior to the interview did she request her own interpreter. Instead, she voluntary answered the questions posed to her through the use of the government-provided interpreter. The Defendant s English fluency put her in a position to judge the accuracy of the translation while it was occurring, but neither objected nor attempted to correct the translation. E.g. United States v. Lopez, 937 F.2d 716, 724 (2d Cir. 1991) (suggesting that English-fluent defendants would have corrected a mistranslation). Her failures to object demonstrate that she acquiesced in the use of Erik Multz as an interpreter. People v. Morel, 8 Misc. 3d 67, 69 (2005). Thus, even if this Court should find that Multz was the declarant of the translation an agency relationship existed making the translation admissible as not hearsay. FED. R. EVID. 801(d)(2)(D). 14

24 III. Crawford can be reconciled with the language conduit or agency approaches because the Sixth Amendment has no application where the defendant is the speaker Prior to Crawford, courts uniformly held that a defendant s out-of-court translated statements could be used against him without the need for cross-examination. See Nazemian, 948 F.2d at 526 (collecting cases). Federal appellate courts that have considered the issue post- Crawford have generally adhered to the same view that interpreted statements pose no hearsay or Sixth Amendment problem. See Orm Hieng, 679 F.3d at ); United States v. Budha, 495 F. App x 452, 454 (5th Cir. 2012); Shibin, 722 F.3d at 248. The reason is simple: these statements are admissions and, thus, non-hearsay. FED. R. EVID. 801(d)(2)(D). This Court in Crawford, in tracing the framers understanding of the Confrontation Clause, recognized that the confrontation clause is inapplicable to statements that are not hearsay. Crawford, 541 U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)). Historically, out-of-court admissions fit within that definition. United States v. Gooding, 25 U.S. 460, 469 (1827). Confessions not taken under oath were admissible against a confessor because the most obvious Principles of Justice, Policy, and Humanity prohibited an accused from attesting to his statements. Crawford, 541 U.S. at 36 (citing 1 G. Gilbert, Evidence 216 (C. Lofft ed. 1791)). That guiding principle remains unchanged. Despite operating under an expanded definition of admission, the law continues to preclude a defendant from challenging his prior statements. For purpose of the Confrontation Clause, a determination that a statement is not hearsay under Rule 801(d) appears to be the equivalent of a firmly rooted hearsay exception. Nazemian, 948 F.2d at 326 n.5. Once a statements falls within any one of the five categories of admissions, the statements are directly attributed to the defendant even if his mouth never spoke the words. FED. R. EVID. 801(d)(2)(A)-(E). The law, recognizes no difference. United States v. Lafferty, 387 F. Supp. 2d 500, (W.D. Pa. 2005) ( [i]t would appear that the four statements set forth in F.R.E. 15

25 801(d)(2)(A) through (D) would be admissible against a criminal defendant consistent with the Sixth Amendment without an opportunity for cross-examination being provided because the nature of these four statements would make them the statements of the criminal defendant. ). The one court to hold otherwise relies on fundamentally flawed reasoning. Invalidating the language-conduit theory, the Eleventh Circuit concluded that confrontation was necessary because [l]anguage interpretation does not provide for a one-toone correspondence between words or concepts in different languages. United States v. Charles, 722 F.3d 1319, 1324 (11th Cir. 2013). Relying heavily on this Court s decision in Bullcoming v. New Mexico, 564 U.S. 647, the Eleventh Circuit held that the interpreter acted as a surrogate for the interpreter. Charles, 722 F.3d at But that is a mistaken analogy. Bullcoming rejected substitute testimony for the analyst who performed the original forensic analysis. 564 U.S. at 2715 ( [T]he comparative reliability of an analyst s testimonial report drawn from machine-produced data does not overcome the Sixth Amendment bar. ) But an interpreter is not like the original analyst. An interpreter is more akin to the machine that produced the results. E.g. Germano, 544 F.3d at 803 ( The [translator] simply reads out the English words from the text she sees, and then types in the English words from the voice she hears. ). An interpreter is simply conveying, in a different language, the solemn declaration[s] or affirmation[s] of the defendant. Crawford, 541 U.S. at 51. Thus, the defendant is the witness, not the interpreter. See United States v. Curbelo, 726 F.3d 1260, 1275 (11th Cir. 2013) (holding the interpreter who created the translated transcripts was not the declarant). IV. Reaching a different result would create separate standards for those individuals who are foreign language speakers and those who are not The dictates of public policy require that translated statements not be interpreted to require confrontation. With increasing frequency, police officers are faced with interactions where the 16

26 individuals involved may not speak English. Casen B. Ross, Clogged Conduits: A Defendant s Right to Confront His Translated Statements, 81 U. CHI. L. REV. 1931, 1933 (2014). As a result, the need for a qualified interpreter to facilitate communication between officers and citizens has also increased. But the increasing need for interpreters out of court conflicts with the Constitutional requirement for interpreters in court. Both the Fifth and Sixth Amendments require court proceedings to be translated accurately. United States ex rel Negrón v. New York, 434 F.2d 386, 389 (2d Cir. 1970). Yet, there can only be so many Haitian Creole or Remsi interpreters. The situation may arise where an interpreter who previously translated out-of-court statements is busy acting as the in-court translator in a separate trial. If this Court were to follow the Fourteenth Circuit s reasoning, the translated admission of a criminal defendant could be excluded based on nothing more than a scheduling conflict. The Sixth Amendment cannot be read to require a translator to be at two places at the same time. Perpetuating a rule that interpreters require confrontation would deprive prosecutors in some cases of the only evidence against a defendant. The Ninth Circuit recognized this dilemma. Nazemian, 948 F.2d at 527. In United States v. Nazemian, the court noted that a rule delineating a difference between individuals who bring their own interpreter, as is suggested in this case, would be devastating in undercover investigations. Id. at n.7. While the court suggested that recording a translation is the preferred method, some instances make that an impossibility. Id. For example, an undercover drug negotiation where the DEA agent s goal was to persuade Nazemian of his authenticity. Id. at 528. A contrary holding would be making an arbitrary distinction between the admissibility of English and non-english speakers. Id. at 527. In light of the context of which this case arises, terrorism, a rule not premised on considerations of practicability does not comport 17

27 with the original purpose of the Confrontation Clause: the proper discovery of truth. Crawford, 541 U.S. at 49 (citing R. Lee, Letter IV by the Federal Farmer (Oct ). For the foregoing reasons, this Court should reverse and remand to the trial court with instructions to consider the four-factor Nazemian test under either the language conduit or agency approach. V. The Fifth Amendment privilege against self-incrimination does not require derivative use immunity for statements compelled by a foreign sovereign because the government s interest in obtaining testimony outweighs the individual s privilege against self-incrimination when statements are compelled abroad The Self-Incrimination Clause of the Fifth Amendment provides that No person shall be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V. In Murphey v. Waterfront Comm n of N.Y. Harbor, 378 U.S. 52, 55 (1964), the Court found the policies protected by the Self-Incrimination Clause to include our sense of fair play which dictates a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him [and] our respect for the inviolability of the human personality and of the right of each individual to a private enclave. Justice Stevens qualified this finding in United States v. Balsys, 524 U.S. 666, (1998), when he noted that what we find in practice is not the protection of personal testimonial inviolability, but a conditional protection of testimonial privacy subject to basic limits recognized before the framing and refined through immunity doctrine in the intervening years. It follows that immunity, and the protection it affords, is the deliberate product of balancing the needs verses the costs of immunity, a balancing that is unique to each situation. Neal Modi, Toward an International Right Against Self- Incrimination: Expanding the Fifth Amendment s Compelled to Foreign Compulsion, 103 Va. L. Rev. 961, 1000 (2017). 18

28 A. The decision below conflicts with the Court s precedent which held that the source of compulsion is relevant when the United States seeks to introduce evidence derived from compelled statements at trial The Supreme Court held in United States v. Balsys, 524 U.S. 666, 669 (1998) that concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause. See also United States v. Murdock, 284 U.S. 141, 149 (1931) (holding that prosecution in a state jurisdiction not bound by the self-incrimination clause is beyond the preview of the privilege). In Balsys, the government sought to determine if the defendant, a resident alien, lied in his immigration application about his activities during World War II. Id. at 670. The Court held that the defendant could not invoke the privilege out of fear of prosecution by foreign nations because to allow the defendant to do so would deprive courts of evidence they were otherwise allowed to receive when the defendant harbored any fear of foreign prosecution. Id. at 718. The fact that there is no analogy of Malloy v. Hogan, 378 U.S. 1 (1964) 1 extending the Fifth Amendment to foreign nations forced the Balsys Court to return to pre-malloy era precedents, before the Fifth Amendment was incorporated against the states. Modi, supra, at 983. Most notable among the pre-malloy era precedents was Feldman v. United States, 322 U.S. 487, (1944), in which the Court held that testimony compelled under a grant of immunity by state courts was admissible in federal criminal cases, despite the fact that the federal government has always been subject to the Fifth Amendment. The holding in Feldman accords with the principle that the Fifth Amendment privilege against self-incrimination is meant to protect individuals against the compulsion and use of their statements by the same sovereign. See Knapp v. Schweitzer, 357 U.S. 371, 380 (1958) (holding that the sole purpose of the Fifth Amendment privilege against self-incrimination is the security of the individual against the exertion of the 1 In Malloy v. Hogan, 378 U.S. 1, 84 S.Ct (1964), the Supreme Court extended the Self-Incrimination Clause to bind the states as well as the federal government under the Fourteenth Amendment process of incorporation. 19

29 power of the federal government to compel incriminating testimony with a view to enabling that same government to convict a man out of his own mouth ) (emphasis added); See also Hale v. Henkel, 201 U.S. 43, 69 (1906) (holding that the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty ). Therefore, the Court s historical precedents support the conclusion reached by the Balsys Court that the sovereign compelling a witness to testify and the sovereign using such compelled testimony must both be bound by the Self-Incrimination Clause in order for a violation of the Fifth Amendment to result. Balsys, 524 U.S. at 689. If both use and derivative use immunity are applied to statements compelled by foreign sovereigns, then federal and state prosecutors will be precluded from introducing statements at trial that are compelled by a sovereign not bound by the Fifth Amendment. Therefore, a foreign sovereign can protect a defendant from prosecution in the United States by simply being the first to compel the defendant to testify then publicizing such testimony. In the context of custodial interrogations conducted overseas by foreign agents, foreign sovereigns cannot protect defendants from prosecution in this way. Statements made to an agent of a foreign state are admissible if voluntary even if the defendant is not given the Miranda 2 warnings. See United States v. Karake, 443 F.Supp.2d 8, (D.D.C. 2006) (holding that United States prosecutors may offer testimony coerced by foreign agents in foreign jurisdictions unless the statement was involuntary or the means used unconscionable). Allowing statements coerced by foreign agents to be admitted at trial in the United States ensures that the admissibility of such statements is not dependent on the actions of a foreign sovereign. 2 Miranda v. Arizona, 384 U.S. 436 (1966). 20