QUESTIONS PRESENTED TABLE OF CONTENTS TABLE OF AUTHORITIES STATEMENT OF THE CASE

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2 QUESTIONS PRESENTED I. Whether a defendant s Sixth Amendment right to confrontation under Crawford v. Washington is violated by 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. II. III. 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. Whether a defendant s Fifth Amendment privilege against self-incrimination is violated by admitting, as substantive evidence of guilt in the Government s case-inchief, evidence that the defendant remained silent when accused of criminal conduct, while the defendant was in custody but before the defendant received Miranda warnings. i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 A. Statement of Facts... 1 B. Procedural Posture... 6 SUMMARY OF THE ARGUMENT... 8 ARGUMENT I. MS. SPECTOR S ENGLISH TRANSLATED STATEMENTS ARE ADMISSIBLE UNDER THE SIXTH AMENDMENT BECAUSE THE CONFRONTATION CLAUSE DOES NOT EXTEND TO A DEFENDANT S OWN OUT-OF-COURT STATEMENTS A. Ms. Spector s Statements Translated into English Are Considered Testimony of the Defendant The Surrounding Circumstances Establish that Ms. Spector was the Declarant Mr. Multz is Not Subject to Cross-Examination Under the Facts of this Case B. The Principal Evil at Which the Confrontation Clause Was Directed Does Not Per Se Extend an Accused Terrorist s Testimony Simultaneously Translated into English Statements II. MS. SPECTOR CANNOT CLAIM THE RIGHT TO IMMUNITY BECAUSE THE FIFTH AMENDMENT DOES NOT BAR DERIVATIVE USE OF A DEFENDANT S STATEMENTS WHERE COMPELLED AND RELEASED TO THE PUBLIC BY A FOREIGN SOVEREIGN AMID THE UNITED STATES OWN INVESTIGATION A. Immunity Does Not Attach to the Statements Ms. Spector Made During RIA s Interrogation in Remsen Because the Source of Compulsion is Not Bound by the Self- Incrimination Clause The RIA and Government did not Engage in a Joint or Cooperative Prosecution of Ms. Spector Ms. Spector Failed to Prove that she was in Fear of Foreign Prosecution B. Immunity Does Not Attach to Statements Compelled by a Foreign Sovereign that are Leaked by a Terrorist Group for the Purposes of Disrupting a United States Government Investigation C. A Balance Must Exist Between Protecting Privileges and Permitting Effective Investigations III. ADMITTING EVIDENCE THAT MS. SPECTOR REMAINED SILENT AFTER AN ACCUSATORY STATEMENT DOES NOT VIOLATE THE FIFTH AMENDMENT BECAUSE A DEFENDANT S MIRANDA RIGHTS CANNOT BE TRIGGERED WITHOUT AN INTENTIONAL GOVERNMENTAL CUSTODIAL INTERROGATION ii

4 A. Admitting Ms. Spector s pre-miranda Silence Does Not Violate the Fifth Amendment Because the Agents Had no Intention of Conducting a Custodial Interrogation at the Time of Her Silence B. It is Improper to Speculate that Ms. Spector Remained Silent to Avoid Self- Incrimination C. Admitting Ms. Spector s pre-miranda Silence Does Not Force Her to Be a Witness Against Herself Because Her Silence is an Adopted Admission Under the Surrounding Circumstances CONCLUSION iii

5 TABLE OF AUTHORITIES Cases Ashwander v. Tennessee Valley Auth., 297 U.S. 288 (1936)...16 Berghuis v. Thompkins, 560 U.S. 370 (2010)...31 Bram v. United States, 168 U.S. 532 (1897)...24 Bullcoming v. New Mexico, 564 U.S. 647 (2011)...11, 17 Crawford v. Washington, 541 U.S. 36 (2004)...8, 11, 12, 17, 18 Davis v. United States, 512 U.S. 452 (1994)...30, 31 Davis v. Washington, 547 U.S. 813 (2006)...18 In re Flanagan, 691 F.2d 116 (2d Cir. 1982)...21, 23 In re Impounded, 178 F.3d 150 (3d Cir. 1999)...20, 21, 22 Kastigar v. United States, 406 U.S. 441 (1972)...19, 26 Mapp v. Ohio, 367 U.S. 643 (1961)...26 Miranda v. Arizona, 384 U.S. 436 (1966)...10, 27, 28, 30, 31 Murphy v. Waterfront Comm n of New York Harbor, 378 U.S. 52 (1964)...19 Nix v. Williams, 467 U.S. 431 (1984)...26 iv

6 Oregon v. Elstad, 470 U.S. 298 (1985)...32 Rhode Island v. Innis, 446 U.S. 291 (1980)...28, 29 Spector Motor Serv. v. McLaughlin, 323 U.S. 101 (1944)...16 United States v. Allen, 864 F.3d 63 (2d Cir. 2017)...24, 25 United States v. Balsys, 524 U.S. 666 (1998)...19, 20, 21 United States v. Charles, 722 F.3d 1319 (11th Cir. 2013)...16 United States v. Curbelo, 726 F.3d 1260 (11th Cir. 2013)...16, 17 United States v. Da Silva, 725 F.2d 828 (2d Cir. 1983)...12, 13, 15 United States v. Hoosier, 542 F.2d 687 (6th Cir. 1976)...32 United States v. Hubbell, 530 U.S. 27 (2000)...20 United States v. Koskerides, 877 F.2d 1129 (2d Cir. 1989)...13, 14 United States v. Lopez, 937 F.2d 716 (2d Cir. 1991)...12, 14, 15 United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991)...12, 13 United States v. Orm Hieng, 679 F.3d 1131 (9th Cir. 2012)...11 United States v. Romo-Chavez, 681 F.3d 955 (9th Cir. 2012)...13 v

7 United States v. Sanchez-Godinez, 444 F.3d 957 (8th Cir. 2006)...12 United States v. Stein, 541 F.3d 130 (2d Cir. 2008)...21 United States v. Ushakow, 474 F.2d 1244 (9th Cir. 1973)...12 United States v. Vidacak, 553 F.3d 344 (4th Cir. 2009)...14, 15 Valenzuela v. United States, 286 F.3d 1223 (11th Cir. 2002)...20 Wainwright v. Greenfield, 474 U.S. 284 (1986)...28 Constitutional Provisions U.S. Const. amend. IV...26 U.S Const. amend. V...19, 27 U.S Const. amend. VI...11, 27 Statutes 8 U.S.C U.S.C. 2339B(a)(1)...1, 6, U.S.C U.S.C , 20, 26 Rules Fed. R. Evid. 801(d)(2)...11, 12, 15, 32 Fed. R. Evid Secondary Sources Fed. R. Evid. 801(d)(2), advisory committee s note (1975)...32 vi

8 STATEMENT OF THE CASE A. Statement of Facts The nation of Remsen sits in an unstable part of the world, with its borders surrounded by conflicting hostile governments. Victoria Spector, a citizen of Remsen, serves as the Chief Executive Officer ( CEO ) of Bank Plaza, the United States division of the National Bank of Remsen ( Bank Plaza ), located in Boerum County. (R. 2, 12). Ms. Spector stands accused of abusing her position as CEO and diverting the donations intended for legitimate Remsen-based charities to a terrorist group based in Remsen, known as DRB, which loosely translates to preserve our heritage. (R. 2, 12). On April 11, 2016, Ms. Spector 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(a)(1). (R. 2, 3, 11). DRB has been designated as a terrorist organization by the United States Secretary of State under Section 219 of the Immigration and Nationality Act. See 8 U.S.C. 1189; (R. 12). DRB is ultimately an underground separatist movement that involves numerous acts of violence and terrorism posed to threaten the national security of the United States. (R. 12). Therefore, any individual knowingly providing material support or resources to DRB is in direct violation of 18 U.S.C. 2339B(a)(1). (R. 12). In March 2014, an anonymous source alerted the Federal Bureau of Investigation ( FBI ) that Ms. Spector had been funneling Bank Plaza funds to DRB for the purposes of military-style training camps and acquiring arms and munitions. (R. 13). The funds that Ms. Spector had been diverting to DRB were camouflaged as donations to legitimate charities, intended to improve conditions for those living in poverty in Remsen. (R. 13). In response to the anonymous tip, the 1

9 FBI commenced its investigation into whether Bank Plaza was, in fact, accepting disguised funds and diverting them to the DRB terrorist group at Ms. Spector s direction. (R. 3, 13). Shortly after receiving the information against Ms. Spector, the FBI directed its agents, such as Serg Beda, to oversee a preliminary investigation, which included a review of various Bank Plaza records. (R. 13). Agent Beda is an FBI Special Agent and has actively served in the Counterterrorism Division for the last ten years. (R. 12). He is responsible for investigating alleged acts of terrorism against the United States, and assists authorities in their investigations. (R. 12). In his position, Agent Beda has primarily investigated individuals, like Ms. Spector, and organizations in the United States, such as Bank Plaza, that are suspected of aiding terrorist organizations that intend to harm the United States or its allies. (R. 12). In May of 2014, the FBI asked Ms. Spector to submit to an interview, to which she agreed. (R. 13). Ms. Spector was adamant that the interview not be recorded. (R. 13). The interview with Ms. Spector was held on June 25, (R. 3, 13). Because Ms. Spector is more fluent in Remsi than she is in English, the FBI provided a certified Remsi interpreter, Erik Multz, from Boerum Certified Translators, Inc. ( Certified Translators ), a reputable professional translation service frequently contracted by the FBI. (R. 13). Mr. Multz relocated to the state of Boerum from Remsen. (R. 17). Ms. Spector s trial attorney, Benjamin Caepers, speculated that Mr. Multz must have relocated solely in response to terrorist outbreaks, but there is an alternative explanation. (R. 17). The country is poor, and people in Remsen are suffering without resources and money. (R. 19). Although Mr. Multz had only worked for Certified Translators for two months, he is a qualified interpreter, having passed both written and oral certification examinations offered by the state of Boerum. (R. 13). During Ms. Spector s interview, Mr. Multz was responsible for carefully converting her Remsi statements into its closest English translation. (R. 13). Unfortunately, despite 2

10 the FBI s extensive efforts to locate him, Mr. Multz s current whereabouts are unknown, as he relocated some time since Ms. Spector s interview. (R. 13). Nonetheless, FBI Agent Jack Malone was responsible for conducting Ms. Spector s interview. (R. 13, 17). Although the encounter was not recorded due to Ms. Spector s request, Agent Malone transcribed, substantially verbatim, the interview questions and Mr. Multz s English translations. (R. 13, 17). During her interview, Ms. Spector responded to questions about her responsibilities as CEO, which included overseeing the bank s operations. (R ). Specifically, Ms. Spector oversaw the unit within the bank that primarily engages in managing the bank s charitable operations ( the Unit ). (R. 19). When Agent Malone asked what charitable work the Unit was responsible for, Ms. Spector clarified that the Unit does not perform charitable work, but instead assists employees, account holders, and other customers of Bank Plaza who want to make donations to Remsen-based charities by suggesting which charities they should donate to. (R. 19). Agent Malone reassured her that he simply needed to clarify the functions of the bank and her involvement. (R. 19). Ms. Spector went on to sass the agent, [s]o, go grasp. (R. 19). Thereafter, Ms. Spector s interview became less consistent, productive, and cooperative. For example, she claimed that she did not remember the names of charities that Bank Plaza directed donations, but later stated: I knew the ins and outs of those charities and [t]here is not a fact that slipped by us. (R. 19). Ms. Spector initially stated that the Unit was responsible for selecting the charities; she went on to clarify, stating [w]e did. (R. 19). Notably, the Unit was comprised of only three people, all of which are originally from Remsen. (R. 20). Ms. Spector asserted that [they knew] better than others what help Remsen needs. (R. 20). The Unit was held in a suite, to which only Remsi people had access. Ms. Spector also made a point to specify: I had access. (R. 20). As CEO, Ms. Spector had final approval on all donations. (R. 20). Although the translated interview portrays crisp 3

11 clarity, Ms. Spector s trial attorney boldly accused the transcription as disingenuous, based solely upon the translator s grammatical interpretation of first person versus second person. (R. 17). In an attempt to support his Affidavit, Mr. Caepers attached correspondence from Ana Ruma, a Professor of Linguistics, who explained that in Standard American English, we have distinct words for I and we, where Remsi has one word that may mean either depending on context. (R. 21). Ms. Ruma asserted that translations from Remsi to English are based upon the interpreter s cultural background. (R. 21). Although the record is silent as to whether Professor Ruma is certified, or even fluent, in the translation of Remsi to English, she nonetheless indicates that she has done so on many occasions. (R. 21). Ms. Spector returned to Remsen from February 2015 to July (R. 13). During four of the five months that Ms. Spector was in Remsen, the FBI s investigation had come to a lull. (R. 13). However, in May of 2015, one of Bank Plaza s former employees provided the FBI with an internal memorandum, which further suggested that Ms. Spector had created a special unit within the bank solely for the purpose of funneling money to one or more terrorist organizations. (R. 13). In response to this information, the FBI reopened its investigation; several bank employees agreed to assist the FBI in its investigation. (R. 13). As a result, the FBI collected substantial documentary evidence showing the large sums of money that had been funneled to DRB through transactions proscribed by Bank Plaza under Ms. Spector s supervision. (R. 13). FBI agents went on to interview dozens of witnesses from the bank, in addition to the legitimate charitable organizations purported to be receiving the contributions. (R. 13). Next, the FBI collected and reviewed tens of thousands of documents from multiple Bank Plaza computers, as well as from the computers of the charitable organizations and the professionals, such as lawyers and accountants, who incorporated the organizations and prepared their public filings. (R. 13). 4

12 Unbeknownst to the FBI, while Ms. Spector was in Remsen, she was interrogated by Remsen s highest-level investigative agency ( RIA ). (R. 14). Ms. Spector alleged that RIA might hold her in contempt if she refused their interview, so she tried to comply with the law of her homeland by submitting to the interrogation. (R. 31). However, on August 17, 2015, news outlets reported that such an interrogation had taken place, and a video recording of the interrogation was leaked to the press and posted on the Internet with English subtitles. (R ). Because of DRB s notorious acts of violence, along with the United States hope to remain peaceful with the Remsen government, this news was reported on all major media outlets in the United States, and was watched by millions of viewers. (R. 14). The FBI asserts that the leaker may have been attempting to disrupt the United States investigation of Spector. Intelligence gathered by the FBI and other U.S. national security agencies suggests that the recording was given to DRB by Remsen officials who support DRB. (R. 14). Despite the disruption caused by the leaked recording, from August 2015 to February 2016, the FBI proceeded to identify twenty-five terrorist organizations that had received funds intended for charitable contributions. (R. 14). DRB was among those terrorist organizations that received funneled funds under Ms. Spector s supervision. (R. 14). On April 14, 2016, Agent Beda and the trial attorney for the United States, Ursula Bentele, applied for a search warrant and an arrest warrant. (R ). The next day, at approximately 5:30 p.m., Agent Beda, along with other FBI agents, arrived at Ms. Spector s home to execute the warrants. (R. 16). Upon knocking and entering the house, the agents saw roughly fifty people standing on the first floor. (R. 15). The agents observed several laptop computers and cell phones in the entryway and throughout the rest of the house, while further observing Ms. Spector in the corner of the living room speaking to a group of people during the party (R. 15). The agents announced their presence, their intent to search the house, and their intent to place Ms. Spector 5

13 under arrest. (R. 15). Agent Beda directed two agents to stand on each side of Ms. Spector, away from the crowd, as agents conducted a security sweep to collect laptops, computers, cell phones, and other items articulated in the search warrant. (R. 15). During their search, Agent Beda observed FBI Agent Maria Amaray turn to Ms. Spector and say: 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 and your family have here. It s just shameful. (R. 15). Immediately after this comment, Agent Beda further observed Ms. Spector looking straight ahead, remaining silent. Agent Beda approached Ms. Spector, advised her of her Miranda rights, and then formally placed her under arrest. (R. 15). B. Procedural Posture In April of 2016, Petitioner, the United States of America ( Government ), initiated this action alleging an 18 U.S.C. 2339B violation claim against Ms. Spector, Respondent. On April 11, 2016, a grand jury sitting in the United States District Court for the Eastern District of Boerum returned an indictment charging Ms. Spector with providing material support to a foreign terrorist organization and conspiring to do so. (R. 14). On April 15, 2016, FBI agents executed their warrants to search Ms. Spector s home and place her under arrest. (R ). Ms. Spector brought three pre-trial motions in limine in the district court: first, Ms. Spector moved to suppress her translated statements provided by Mr. Multz on the grounds that she could not cross-examine him at trial; second, Ms. Spector moved to require the Government to establish, at a Kastigar hearing, an independent source for all evidence to be offered against her at trial on the grounds that her native country had leaked a recording of her interrogation; and third, Ms. Spector moved to exclude evidence that she had remained silent when an FBI agent made accusatory statements to her after she was placed in custody, but before she was placed under 6

14 formal arrest, and before she received Miranda warnings. (R. 2-3). After a pre-trial hearing, the motions were granted on August 11, (R ). After the Kastigar hearing, the district court issued an order on August 25, 2016, to exclude all evidence developed after the recording of Ms. Spector s interview had been leaked, finding that the Government had failed to meet its heavy burden to establish that its evidence had been developed free of taint. (52-53). The Government brought an interlocutory appeal before the United States Court of Appeals for the Fourteenth Circuit, pursuant to 18 U.S.C (R. 2). The court of appeals issued a majority opinion affirming the district court s rulings. (R. 2-7). Circuit Judge Falk dissented. (7-10). This Court granted certiorari on October 16, (R. 1). There are three issues before this Court. (R. 1). The first issue is whether a defendant s Sixth Amendment right to confrontation under Crawford v. Washington is violated by admitting an interpreter s translation into English of statements made by a defendant in a foreign language without permitting the defendant to crossexamine the interpreter. (R. 1). The second issue is 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 Government s involvement, in the midst of the United States investigation. (R. 1). The third issue is 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. (R. 1). 7

15 SUMMARY OF THE ARGUMENT Ms. Spector s Sixth Amendment right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004), is not violated by admitting Mr. Multz s translations of statements she made in her native Remsi language into English without providing her an opportunity to cross-examine the interpreter. Ms. Spector s translated statements are admissible because the Confrontation Clause of the Sixth Amendment does not extend to a defendant s own out-of-court statements. In light of the surrounding circumstances, Ms. Spector s statements translated into English should be attributed to Ms. Spector, rather than to the interpreter, because Mr. Multz served as no more than a language conduit. Mr. Multz is a language conduit because he was a qualified interpreter, certified in translating Remsi to English, and had no motive to mislead or distort the translations. Moreover, the only inconsistencies found within his translations surround his grammatical interpretations of first person versus second person. Additionally, because Ms. Spector spoke English, but was simply more fluent in her native language, she had every opportunity during her interview to correct any translation to have been allegedly misconstrued by Mr. Multz. The court of appeals erred in creating a bright line rule that deems all translations as inadmissible solely on the basis that the interpreter is unavailable for trial. From a policy perspective, adopting such a bright line rule that ignores surrounding circumstances would set a dangerous precedent that could exclude vital evidence without subjecting it to any scrutiny. Thus, because the lower courts failed to engage in a totality of circumstances analysis, and the circumstances support a finding that Ms. Spector was the declarant, the court of appeals erred in barring the admission of the translated statements under Crawford. The court of appeals also erred in holding that the Fifth Amendment s prohibition against the use or derivative use of a defendant s compelled testimony in a criminal trial applies when the 8

16 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. Ms. Spector cannot claim the right to immunity because the Fifth Amendment does not bar derivative use of a defendant s statements where the source of compulsion is not bound by the Self-Incrimination Clause under our Constitution. Because the FBI and RIA were not engaging in any joint prosecution of Ms. Spector, there is no direct nexus between the governments respective investigations. Moreover, when the Remsi government officials were interrogating Ms. Spector in her native country, RIA was utilizing its own laws, separate from that of the United States. The court of appeals adopted a harsh standard that burdens our Government with consequences stemming from actions taken by foreign sovereigns that are completely separate from the United States Government. In doing so, the court was attempting to prevent foreign sovereigns from diluting Fifth Amendment protections, and attempting to deter our Government from colluding with foreign governments to advance its own domestic investigations. However, the appellate court ignored the conflicting policy concern. Ms. Spector s interrogation was leaked by a terrorist group for the purposes of disrupting our Government s investigation. Therefore, in light of the heavy burden set forth by a Kastigar hearing, courts should consider whether immunity attaches to statements compelled and leaked by a foreign sovereign, without any United States governmental involvement, on a case-by-case basis. Here, because Remsen is not bound by our Constitution, and RIA s interrogation was entirely independent from the FBI s investigation, the court of appeals erred by expanding the Fifth Amendment s prohibition against the use or derivative use of compelled testimony to such circumstances. Finally, Ms. Spector s Fifth Amendment privilege against self-incrimination is not violated solely by admitting evidence that she remained silent when accused of criminal conduct before she 9

17 had received her Miranda warnings. This Court articulated Miranda warnings as procedural safeguard to ensure that suspects subject to a custodial interrogation are aware of their Constitutional rights so that they can knowingly and intentionally invoke or waive such rights. Miranda v. Arizona, 384 U.S. 436, 444 (1966). However, the procedural safeguards under Miranda are only mandated where a suspect is subject to a custodial interrogation. Here, although Ms. Spector was in custody, she was not subject to any interrogation at the time she was silent. In analyzing whether an interrogation has occurred, courts look to whether the Government officer used words or actions that he or she knew were reasonably likely to elicit an incriminating response from the defendant. Here, however, none of the FBI agents asked Ms. Spector any express questions while she was in custody. Ms. Spector was not placed in custody for an interrogation, but to seclude from her guests so that the FBI could execute their search warrant. Moreover, there are insufficient facts to support a finding that Agent Amaray made accusatory statements towards Ms. Spector for the purposes of eliciting an incriminating response. When Ms. Spector was placed in custody, the FBI agents had neither commenced nor completed their search of her house, and she had not yet been placed under arrest. Because Ms. Spector was not subject to a custodial interrogation, the circumstances therefore did not require procedural safeguards under Miranda. In the absence of Miranda warnings, this Court has directed courts not to look at a defendant s subjective knowledge of his or her constitutional rights. Accordingly, a defendant s silence is only inadmissible under Miranda where he has specifically been advised of those rights. Here, it would be improper to assume that Ms. Spector was silent for the purposes of invoking her Fifth Amendment right against self-incrimination because she was not advised of such right. Thus, the Fifth Amendment protection to Ms. Spector s pre-miranda silence need not be applied. Therefore, the decision rendered by the court of appeals must be reversed. 10

18 ARGUMENT I. MS. SPECTOR S ENGLISH TRANSLATED STATEMENTS ARE ADMISSIBLE UNDER THE SIXTH AMENDMENT BECAUSE THE CONFRONTATION CLAUSE DOES NOT EXTEND TO A DEFENDANT S OWN OUT-OF-COURT STATEMENTS For purposes of criminal prosecutions, the Sixth Amendment of the United States Constitution provides that the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const. amend. VI. The Confrontation Clause was intended to determine whether statements are testimonial, thereby requiring confrontation. See Crawford v. Washington, 541 U.S. 36 (2004) (holding that out-of-court testimonial statements made by a witness that is absent from trial are admissible only where the declarant is unavailable and the defendant has had a prior opportunity to cross-examine); Bullcoming v. New Mexico, 564 U.S. 647, 670 (2011) (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. ). However, the Confrontation Clause cannot be violated by admitting a defendant s own out-of-court testimonial statements; such statements are characterized as party admissions under the Federal Rules of Evidence. Fed. R. Evid. 801(d)(2). See United States v. Orm Hieng, 679 F.3d 1131, 1140 (9th Cir. 2012) (acknowledging that [w]here [the] speaker is the defendant, the Sixth Amendment simply has no application because a defendant cannot complain that he was denied the opportunity to confront himself. ). A. Ms. Spector s Statements Translated into English Are Considered Testimony of the Defendant The Federal Rules of Evidence typically bar hearsay testimony as inadmissible. Fed R. Evid Additionally, a defendant in a criminal proceeding has the Constitutional right to confront a witness whom bear[s] testimony against him. U.S. Const. amend. VI. Crawford, 541 U.S., at 51. The Confrontation Clause of the Sixth Amendment only applies to testimonial 11

19 statements; thus, it is not limited to in-court testimony, but also extends to out-of-court testimony. Id. at 51. Accordingly, where a defendant has had no prior opportunity to cross-examine an unavailable witness, that witness ex parte statements are inadmissible under the Confrontation Clause. Id. at 55. A defendant s out-of-court testimony, or testimony provided by a defendant s agent, however, is properly categorized as a party admission, which is not protected by the Confrontation Clause or necessarily subject to the rules against hearsay. Fed. R. Evid. 801(d)(2)(A)-(D); see United States v. Sanchez-Godinez, 444 F.3d 957, 960 (8th Cir. 2006). Where a defendant provides ex parte testimony in a foreign language that is simultaneously translated into English, lower courts have been left to interpret the scope of the Confrontation Clause. The question then becomes whether the interpreter s English translation is considered a testimonial statement made by the defendant or by the interpreter. United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991). Here, it is undisputed that the translated statements attributed to Ms. Spector are testimonial, that she did not have the opportunity to cross examine Mr. Multz, and that Mr. Multz is unavailable for cross-examination at trial. (R. 4). The court of appeals held that translations are always inadmissible where the interpreter is unavailable for trial. (R. 5-6). However, the majority of circuit courts have held that the totality of circumstances will supply the answers as to whether the interpreter is the declarant and whether an additional level of hearsay is created. Nazemian, 948 F.2d at 527; United States v. Lopez, 937 F.2d 716, 724 (2d Cir. 1991). 1. The Surrounding Circumstances Establish that Ms. Spector was the Declarant The court of appeals refused to analyze the totality of circumstances before dismissing the language conduit theory. (R. 4). See United States v. Ushakow, 474 F.2d 1244, 1245 (9th Cir. 1973) (holding that where there is no motive to mislead and no showing of inaccurate translations, a translator is no more than a language conduit); United States v. Da Silva, 725 F.2d 828, 832 (2d 12

20 Cir. 1983). However, in his dissent, Judge Falk acknowledged the totality of circumstances approach to determine whether translated statements should be attributed to a defendant or to the interpreter. (R. 8); see Nazemian, 948 F.2d at 527; United States v. Romo-Chavez, 681 F.3d 955, 959 (9th Cir. 2012) (noting that such an issue requires the facts to be analyzed on a case-by-case basis). Most circuits engage in a four-part analysis articulated by the Ninth Circuit: first, which party supplied the interpreter; second, whether the interpreter had any motive to mislead or distort; third, the interpreter s qualifications and language skill; and fourth, whether actions taken during the conversation were consistent with the statements as translated. Nazemian, 948 F.2d at 527. In Nazemian, the defendant argued that the district court had violated the Confrontation Clause by admitting statements that the defendant had made through an interpreter. In analyzing the fourfactor test, the court acknowledged that the translator had been supplied by a Government agency. Still, there was no evidence that the interpreter had any motive to mislead or distort. Id. at 528. Moreover, there was no evidence that the interpreter was incompetent or unqualified, and the conversations appeared consistent with the statements as translated. Id. at 528. Thus, based on the circumstances, the circuit court affirmed the district court s evidentiary ruling, holding that courts must consider on a case-by-case basis whether the translated statements fairly should be considered the statements of the speaker. Id. at 527. Here, the statements translated into English should be attributed to Ms. Spector. First, although Mr. Multz was provided by the FBI, courts have consistently held that such a factor, alone, is not dispositive to infer bias. (R. 13). Nazemian, 948 F.2d at 527. See Da Silva, 725 F.2d at 832 (where an interpreter was a customs official supplied by the Drug Enforcement Agency); United States v. Koskerides, 877 F.2d 1129, 1135 (2d Cir. 1989) (where the interpreter was employed by the American embassy and procured by the Government). Second, Mr. Multz had no motive to mislead 13

21 or distort Ms. Spector s translations. Mr. Caepers bold assumption that Mr. Multz left Remsen solely due to DRB terrorist outbreaks, which he speculates having resulted in harbored animosity against Ms. Spector, remains unsupported. (R. 17, 19). Third, Mr. Multz is more than qualified to administer adequate English translations from Remsi. Although Mr. Multz had only worked for Certified Translators for two months, he had passed both written and oral certification examinations offered by the state. (R. 13). Fourth, there are no inconsistencies within the translations that would trigger warranted suspicion. (R. 17). The minor inconsistencies found within the translations are those surrounding grammatical interpretations of first person versus second person. (R. 17, 25, 26). Professor Ruma asserted that such grammatical translations from Remsi to English are based upon the interpreter s cultural background. (R. 21). However, the record is silent as to whether Professor Ruma is certified, or even fluent, in translating Remsi to English. Accordingly, such arguments carry little weight in overcoming the four-factor test articulated by the Ninth Circuit. The Second and Fourth Circuits have addressed similar issues, where the respective defendants argued that their translated statements were inadmissible hearsay. Lopez, 937 F.2d at 724; United States v. Vidacak, 553 F.3d 344, 352 (4th Cir. 2009). In Lopez, the court held that, [e]xcept in unusual circumstances, an interpreter is no more than a language conduit and courts must look to the surrounding circumstances in analyzing whether his translation creates an additional level of hearsay. 937 F.2d at 724 (quoting Koskerides, 877 F.2d at 1135). However, the defendants in Lopez had failed to show any unusual circumstances demonstrating that the translator was not acting as a language conduit. 937 F.2d at 724. The court also noted that both defendants spoke English and were present at the time their statements were being translated; thus, it stands to reason that if [the interpreter] had distorted [the defendants ] conversation, they would have 14

22 noticed it and corrected her. Id. at 724. In Vidacak, the Fourth Circuit similarly held that the interpreter was not the declarant. 553 F.3d at 352. In analyzing potential bias, the court considered two factors: first, that the interpreter was an employee of an independent United Nations funded agency, separate from that of the Government; and second, that there was no indication that the interpreter had been specifically selected by the Government. Id. at 352. Thus, the translations did not create double hearsay, and the translations were properly qualified as a party admission under Fed. R. Evid. 801(d)(2). Id. at 352. Similar to Lopez and Vidacak, here, the surrounding circumstances do not support a finding that Mr. Multz served as anything more than a language conduit. First, it is important to note that Ms. Spector spoke English, but was simply more fluent in her native language than she was in English. (R. 13) (emphasis added). Because Ms. Spector spoke English, she had the opportunity correct any translation allegedly being misconstrued. See Lopez, 937 F.2d at 724. Second, there is nothing in the record to show that Mr. Multz was specifically selected by the Government; rather, Mr. Multz was simply an employee of Certified Translators, a reputable translation company, separate from that of the Government. (R. 13). See Vidacak, F.3d at 352. Finally, although the Government contracted with Certified Translators, even where the Government supplies the translator, as the FBI did for Ms. Spector, the translator is still typically viewed as an agent of the defendant. See Lopez, 937 F.2d at 724; Da Silva, 725 F.2d at 831. Thus, based on these circumstances, the English interpretations provided by Mr. Multz are attributable to Ms. Spector as a party admission, and do not violate the Confrontation Clause under the Sixth Amendment. 2. Mr. Multz is Not Subject to Cross-Examination Under the Facts of this Case To preserve the core function of the Confrontation Clause and the integrity of the criminal justice system, circuit courts have adopted the approach that analyzes issues surrounding whether 15

23 an interpreter is a declarant or a language conduit on a case-by-case basis. The Eleventh Circuit, however, rejected the accommodating approach, reasoning that it would only be relevant to the Federal Rules of Evidence, rather than the Confrontation Clause. United States v. Charles, 722 F.3d 1319, 1322 (11th Cir. 2013). The court of appeals adopted the Eleventh Circuit s approach, holding that a defendant s translated testimony is always inadmissible where the interpreter is unavailable for trial. Charles, 722 F.3d at In Charles, a language interpreter translated the defendant s statements from Creole to English. Id. at Still, because the defendant never objected to the translated testimony being admitted, on appeal, the court elected to engage in an unnecessary and complex analysis addressing the issue of who acted as the declarant. Id. at 1334 (Marcus, S., concurring); cf Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944) (holding that the court should not address questions of constitutionality unless such adjudication is unavoidable); Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346 (1936) ( The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the court to decide questions of constitutional nature unless absolutely necessary to a decision of the case (internal citations and quotations omitted)). Because the defendant in Charles did not object to the admission of the testimony, the circuit court was unable to even attempt an analysis based on the surrounding circumstances, as it did not have the benefit of any factfinding from the district court that [would] be pertinent to resolving this issue... Charles, 722 F.3d at 1334 (Marcus, S., concurring). The Eleventh Circuit readdressed the issue in a separate case, which also had insufficient facts that would allow the court to engage in a proper totality of circumstances analysis. United States v. Curbelo, 726 F.3d 1260, 1272 (11th Cir. 2013). In Curbelo, the court found that because [the witness], not the original translator, was the witness against Defendant under the Sixth 16

24 Amendment, the admission of the transcripts through [his] testimony did not violate the Confrontation Clause. Id. at The Eleventh Circuit has effectively created a harsh precedent within its jurisdiction that could result in the exclusion of highly probative evidence. However, this harsh precedent stems from Eleventh Circuit having been presented with highly distinguishable cases from that of Ms. Spector s, or those addressed by the Second, Fourth, Eighth, and Ninth Circuits. Thus, the court of appeals erred in relying on the minority approach without even engaging in the alternative analysis with factual similarities mirroring Ms. Spector s case. In addition to forfeiting a totality of circumstances analysis, the court of appeals also misapplied this Court s precedent set forth in Bullcoming, 564 U.S. at 647. In Bullcoming, this Court held that the results of a defendant s blood alcohol test could not be admitted without giving the defendant the opportunity to cross examine the analyst that transcribed the results. Id. at 660. Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation Id. at 661. However, here, Mr. Multz did not transcribe Agent Malone s questions nor Ms. Spector s responses; it was FBI Agent Malone that transcribed the interview questions and English translations, substantially verbatim. (R. 13, 17). Thus, in applying Bullcoming, Agent Malone, rather than Mr. Multz, is subject to cross examination under the Confrontation Clause. 564 U.S. at 661; Crawford, 541 U.S. at 51. B. The Principal Evil at Which the Confrontation Clause Was Directed Does Not Per Se Extend an Accused Terrorist s Testimony Simultaneously Translated into English Statements In Crawford, this Court stated that the principal evil at which the Confrontation Clause was directed was the civil law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. 541 U.S. at 50. Justice Scalia went on to note that an open-ended balancing test could harm the intended constitutional guarantees under the Sixth Amendment. Id. at Accordingly, this Court reiterated the categorical constitutional 17

25 guarantee surrounding the Confrontation Clause. Id. at 67. Two years later, this Court was again asked to determine whether out-of-court statements were considered testimonial. Davis v. Washington, 547 U.S. 813, 814 (2006). This Court held that if the circumstances indicate that statements are made for the primary purpose of investigating an ongoing emergency, they are not testimonial, and therefore not subject to the Confrontation Clause. Id. at 822. This Court s Davis ruling by no means replaced a categorical constitutional guarantee, but looked to surrounding circumstances to determine whether that guarantee was even warranted. Crawford, 541 U.S. at 67. Without looking to the circumstances in Davis, this Court would not have reached its conclusion. Once again, this Court is being asked to determine the scope of the Confrontation Clause, which is both a factual and a legal determination. As noted by Judge Falk, the majority s holding would exclude vital evidence without subjecting it to any scrutiny at all. (R. 8). Additionally, because it is not uncommon for language interpreters to be unavailable for trial, this categorical rule will work substantial mischief. (R. 8). It will effectively create an opportunity for potential criminals and accused terrorists to manipulate our Constitution. Here, Ms. Spector explicitly requested that the interview not be recorded; moreover, she has not protested the accuracy within the substance of Mr. Multz s translations, but only his grammatical interpretations. (R. 17, 25, 26). Even more so, the need for a translator was not necessary, as Ms. Spector was fluent in both English and Remsi. (R. 13). Ultimately, Ms. Spector is exploiting a loophole that she has found within our Constitution and jurisprudence. However, such a loophole cannot be exploited when analyzing the issue on a case-by-case basis. Based on the circumstances here, Mr. Multz served as no more than a language conduit; therefore, Ms. Spector s statements translated into English are properly categorized as testimony of the defendant. Thus, the lower courts erred in barring the admission of the translated statements under Crawford. 18

26 II. MS. SPECTOR CANNOT CLAIM THE RIGHT TO IMMUNITY BECAUSE THE FIFTH AMENDMENT DOES NOT BAR DERIVATIVE USE OF A DEFENDANT S STATEMENTS WHERE COMPELLED AND RELEASED TO THE PUBLIC BY A FOREIGN SOVEREIGN AMID THE UNITED STATES OWN INVESTIGATION The Fifth Amendment of the United States Constitution prohibits the admission of evidence derived from a defendant s compelled testimony that is subject to immunity. U.S. Const. amend. V. The Self-Incrimination Clause was intended to protect against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be used. Kastigar v. United States, 406 U.S. 441, 445 (1972). Thus, witness immunity statutes are embedded within the roots of our Constitution, and are intended to safeguard against the use of previously compelled testimony that might otherwise have been subject to the clause against self-incrimination. 18 U.S.C. 6002; Kastigar, 406 U.S. at 448. This Court has barred the use of compelled testimony as an investigatory lead, and also [bars] the use of any evidence obtained by focusing investigation[s] on a witness as a result of his compelled disclosures. Id. at 460 (internal citations omitted). Accordingly, where a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent legitimate source for the disputed evidence. Id. at 460 (quoting Murphy v. Waterfront Comm n of New York Harbor, 378 U.S. 52, 77 (1964), abrogated by United States v. Balsys, 524 U.S. 666 (1998)). However, in Balsys, this Court clearly held that concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause. 524 U.S. 666, 669 (1998) (reasoning that we read the Clause contextually as apparently providing a witness with the right against compelled self-incrimination when reasonably fearing prosecution by the government whose power the Clause limits, but not otherwise. ). 18 U.S.C

27 A. Immunity Does Not Attach to the Statements Ms. Spector Made During RIA s Interrogation in Remsen Because the Source of Compulsion is Not Bound by the Self-Incrimination Clause Immunity preserves the integrity within the judicial system of the United States by preventing compelled statements from tainting court proceedings. 18 U.S.C See United States v. Hubbell, 530 U.S. 27 (2000). The Fifth Amendment, however, is directed towards governmental acts. To maintain a balance between private and governmental interests, which have seemingly been accepted for as long as there has been [a] Fifth Amendment doctrine, this Court has declined to extend the scope of the Self-Incrimination Clause to apply in foreign prosecutions, particularly, where the Government is uninvolved. Balsys, 254 U.S. at 693. See Valenzuela v. United States 286 F.3d 1223, 1229 (11th Cir. 2002) (acknowledging that the Self-Incrimination Clause lacks extraterritorial application). This Court has not ruled, however, on the issue of whether the Clause encompasses testimony made to the foreign prosecution or investigators, where the Government was uninvolved. The court of appeals blatantly disregarded the notion that concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause, and extended a state grant of immunity to Ms. Spector. cf. Balsys, 254 U.S. at 669, 693. As the court of appeals holding expands the protections of the Fifth Amendment to cover contexts the framers could never have imagined, much less intended, the court of appeals erred. (R. 8). Although this Court s Balsys holding is clear, no clear test exists to articulate what factors are necessary to trigger immunity. See In re Impounded, 178 F.3d 150, 155 (3d Cir. 1999) (holding that this Court s precedent provided conditional language, rather than prescriptive language). Thus, lower courts have typically looked to surrounding circumstances before ruling on issue of immunity. Here, however, the court of appeals held that the source of compulsion is irrelevant, relying on its own unsupported conclusion that the Fifth Amendment injury to a 20

28 defendant occurs not at the time of compulsion, but at the time of trial. (R. 5). However, such a holding is unprecedented and runs contrary to this Court s Balsys ruling. In Balsys, a resident alien asserted the privilege to avoid providing incriminating testimony in a domestic proceeding that would be subject to prosecution in his native country. Balsys, 524 U.S. at 669. However, this Court explicitly declined to extend the privilege to foreign prosecutions. Shortly thereafter, in In re Impounded, defendants proposed a test, arguing that immunity applies where (1) the Government engages in a joint or cooperative prosecution with a foreign sovereign, and (2) the witness faces real and substantial fear of foreign prosecution. 178 F.3d at 156. See In re Flanagan, 691 F.2d 116, 120 (2d Cir. 1982) (articulating five factors to be considered when analyzing fear of prosecution). The defendants had theorized that a joint international prosecution must have existed based on contact initiated with oversea nationals and requests for documents from foreign countries. The Third Circuit rejected the defendants proposed test, but entertained its application nonetheless. The circuit court concluded that, even if it were to adopt the defendants proposed test, an ongoing and established policy of joint internationalization would not be satisfied under such facts. In re Impounded, 178 F.3d at The RIA and Government did not Engage in a Joint or Cooperative Prosecution of Ms. Spector The court of appeals relied on United States v. Stein, 541 F.3d 130 (2d Cir. 2008), where the Second Circuit held that constitutional rights may be implicated where there is a direct nexus stemming from federal prosecutors coordinating their investigations with non-governmental entities, such as employers, who in turn pressure defendants to make statements. (R. 5). However, similar to the facts surrounding Impounded, here, there are insufficient facts to support a finding that RIA and the Government were engaging in any joint or cooperative prosecution of Ms. Spector. The FBI had already commenced its own investigation of Ms. Spector for conspiring to 21