IN THE SUPREME COURT OF THE UNITED STATES

Transcription

1 Team 2P No IN THE SUPREME COURT OF THE UNITED STATES UNITED STATES OF AMERICA, Petitioner, v. VICTORIA SPECTOR Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR THE PETITIONER

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 crossexamine 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 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. i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE CASE... 1 Statement of Facts... 1 Procedural History... 4 SUMMARY OF THE ARGUMENT... 5 ARGUMENT...8 I. THE SIXTH AMENDMENT CONFRONTATION CLAUSE IS NOT VIOLATED BY INTERPRETER S UNAVAILABILITY AT TRIAL BECAUSE RESPONDENT IS THE DECLARANT OF THE STATEMENTS AND THE INTERPRETER WAS A LANGUAGE CONDUIT WHO SPOKE ON RESPONDENT S BEHALF AS AN AGENT A. The Confrontation Clause is Not Implicated Because Respondent Was The Declarant Of the Statements And Interpreter Multz Was Merely A Language Conduit Through Which She Could Communicate With the FBI The Translated Statements Are Fairly Attributable to Respondent and Reliable Interpreter Multz s Translations Were Not Made Independently From Respondent...12 i. Interpreter Multz s Translations Were Not Separate From Respondent 12 ii. The Translations Were Not Performed Independently And Agent Malone s Testimony Is Not Surrogate Testimony...13 B. The Confrontation Clause Is Not Violated After Crawford Where Interpreter Is A Language Conduit as Respondent s Agent And A Government Agent Testifies To Respondent s Non-Hearsay Party Opponent Admissions Interpreter Was A Language Conduit As Respondent s Agent...15 ii

4 i. Respondent Was Sufficiently Fluent In English To Understand Translations...15 ii. Interpreter Had Sufficient Capacity To Translate Respondent s Statements...17 II. FIFTH AMENDMENT PROTECTIONS DO NOT EXTEND TO STATEMENTS COMPELLED BY A FOREIGN GOVERNMENT BECAUSE SUCH A LAW WOULD GO FAR BEYOND ITS INTENDED CONSTITUTIONAL PURPOSE AND WOULD PLACE AN UNREASONABLE BURDEN ON THE GOVERNMENT 18 A. Respondent s Compelled Testimony is Not Protected Under the Privilege of Immunity Because The United States Had No Involvement In The Interview and The Fifth Amendment Has Never Extended to Foreign Sovereigns The United States And Remsen Governments are Not Same Sovereigns Because There was No Purposeful and Direct Involvement Between Nations To Extend Fifth Amendment Immunity To Statements Compelled by Foreign Governments Would Allow Foreign Powers to Meddle in U.S. Judicial Proceeding 22 B. The Analysis In Allen Is Not Applicable Because It Lacks Legal Precedent and Overextends The Fifth Amendment Immunity Privilege Allen is Unpersuasive and Burdens the U.S. Government Allen Lacks Precedential Support Even if Allen Rested on Firmer Ground, The Facts of Allen are Distinguishable...25 III. RESPONDENT S POST-ARREST, PRE-MIRANDA SILENCE CAN BE USED BY PROSECUTION AS SUBSTANTIVE EVIDENCE OF GUILT BECAUSE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION IS ONLY TRIGGERED BY CUSTODIAL INTERROGATION A. The Fifth Amendment Does Not Protect Statements Made While in Custody but Prior to Administration of Miranda Warnings Respondent s Fifth Amendment Protections Were Not Triggered Because She Was Not Under Custodial Interrogation Pre-Arrest Silence is Distinguishable From Post-Arrest Silence B. The Respondent Was Under No Compulsion to Speak Because The Government Did Not Induce Her Silence iii

5 1. The Government Did Not Induce Respondent s Silence Conclusion iv

6 TABLE OF AUTHORITIES UNITED STATES CONSTITUTION U.S. CONST. AMEND. V... 18, 22, 27 U.S. CONST. AMEND. VI... 7 UNITED STATES SUPREME COURT Bram v. United States, 168 U.S. 532 (1897) Bullcoming v. New Mexico, 564 U.S. 647 (2011) Crawford v. Washington, 541 U.S. 36 (2004)... 7, 14, 15 Feldman v. United States, 322 U.S. 487 (1944) Hale v. Henkel, 201 U.S. 43 (1906) Jenkins v. Anderson, 447 U.S. 231 (1980) Kastigar v. United States, 406 U.S. 441 (1972)... 18, 23 Knapp v. Schweitzer, 357 U.S. 371 (1958) Malloy v. Hogan, 378 U.S. 1 (1964) Miranda v. Arizona, 384 U.S. 436 (1966) , 29, 30, 31 Murphy v. Waterfront Comm n, 378 U.S. 52 (1964)... 19, 21 United States v. Balsys, 524 U.S. 666 (1998)... 18, 19, 20 22, 25 United States v. Murdock, 284 U.S. 141 (1931)... 19, 20, 21 Wainwright v. Greenfield, 474 U.S. 284 (1986) UNITED STATES COURT OF APPEALS Guan Lee v. United States, 198 F. 596 (7 th Cir. 1912)...7 In Re Impounded, 178 F.3d 150 (3d Cir. 1999) v

7 United States v. Allen, 864 F.3d 63 (2d Cir. 2017) , 26 United States v. Alvarez, 755 F.2d 830 (11th Cir.1985)... 8 United States v. Araneta, 794 F.2d 920 (4th Cir. 1986)... 22, 25 United States v. Behety, 32 F.3d 503 (11th Cir. 1994) United States v. Boskovic, 472 F. App'x 607 (9th Cir. 2012)... 7 United States v. Brown, 441 F.3d 1330 (11th Cir. 2006)...8 United States v. Byrd, 765 F.2d 1524 (11th Cir. 1985)...18 United States v. Charles, 72 F.3d 1319 (11th Cir. 2013) United States v. Da Silva, 725 F.2d 828 (2d Cir. 1983)... 8, 15, 16 United States v. Desire, 502 F. App'x 818 (11th Cir. 2012)... 8, 14, 17 United States v. Frazier, 408 F.3d 1111 (8th Cir. 2005)... 27, 31 United States v. Garcia, 16 F.3d 341 (9th Cir. 1994)... 7, 9 United States v. Gecas, 120 F.3d 1419 (11th Cir. 1997) United States v. Jiminez, 564 F.3d 1280 (11th Cir. 2009) United States v. Lopez, 937 F.2d 716 (2d Cir.1991)... 8, 15, 16 United States v. Love, 767 F.2d 1052 (4th Cir.1985) United States v. Massey, 687 F.2d 1348 (10th Cir.1982) United States v. Martinez Gaytan, 213 F.3d 890 (5th Cir.2000)... 7, 8, 10 United States v. Moore, 104 F.3d 377 (D.C. Cir. 1997)... 27, United States v. Nanni, 59 F.3d 1425 (2d. Cir. 1995) United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991) , 9, 10, 15 United States v. Orm Hieng, 679 F.3d 1131 (9th Cir. 2012)... 7 United States v. Rivera, 944 F.2d 1563 (11th Cir.1991) vi

8 United States v. Romo-Chavez, 681 F.3d 955 (9th Cir. 2012)... 7, 8, 9-11 United States v. Sanchez Godinez, 444 F.3d 957 (8th Cir. 2006)... 7, 15 United States v. Santa-cruz, 480 F. App'x 441 (9th Cir. 2012)... 7, 8, 15 United States v. Ushakow, 474 F.2d 1244 (9th Cir. 1973)... 7 United States v. Vidacek, 553 F.3d 344 (4th Cir. 2009)... 7 Vick v. Lockhart, 952 F.2d 999 (8th Cir.1991) UNITED STATES DISTRICT COURT U.S. v. Lileikas, 899 F.Supp. 802 (D. Mass. 1995)...22 FEDERAL STATUTES 18 U.S.C vii

9 Facts STATEMENT OF THE CASE On May 2014, Special Agent Serg Beda ( Agent Beda ) set up an interview with Victoria Spector ( Respondent ), the CEO of the United States Division of the National Bank of Remsen, Bank Plaza. (R. 2, 3, 12, 13, 17, 23, 48). This was after the FBI received information from an anonymous source identifying Respondent as being involved in providing bank money to DRB through what looked like charitable donations. (R. 13). Prior to the interview, the FBI reviewed bank records and other documents. (R. 13). FBI Special Agent Jack Malone ( Agent Malone ) conducted the interview. (R. 13, 17). On June 25, 2014, the interview was held. (R. 13, 17, 24, 48). Respondent requested a Remsi interpreter because, although she speaks English, she is more comfortable speaking in Remsi. (R. 3, 13, 17, 19, 24, 48). The FBI arranged for certified Remsi interpreter Erik Multz ("Interpreter Multz") from a reputable translation service frequently used by the FBI. (R. 3, 7, 13, 17, 27). He had worked for the agency for two months and passed both a written and oral certification. (R. 13, 27). Remsi is a difficult language to translate into English, in terms of structure and differences in pronouns. (R ). However, Remsi is Interpreter Multz s home country and he is a certified Remsi translator. (R. 13). Agent Malone took verbatim notes of the interview after Respondent refused to allow the interview to be recorded. (R. 13, 17). The transcript reveals Respondent used I in reference to her role as CEO of the bank, and we when referring to the unit she created to manage bank donations to Remsen-based charities. (R , 25-26). Agent Malone asked Respondent what her position was at the bank, she stated, CEO, as CEO we oversee the bank s operations. (R. 19). Agent Malone clarified, "Who oversees the bank's operations?" and she responded "I do." (R. 19). Agent Malone then raised the subject of "the unit" in the bank. (R. 19). In reference to this 1

10 unit, Respondent used phrases like it doesn t do any charitable work itself, it assists employees, [w]e just wanted to help, and in response to who selected the charities the bank would contribute to, she stated [t]he unit did. We did. (R. 19). Respondent went on to explain her intent in making final decisions on which charities received bank donations, stating her intention, I wanted to help the Remsi people. (R. 20). To answer whether all donations had to be run by Respondent first, she answered, "I had to give ok I want to comply with all US law so we made sure to keep a very good record. (R. 18, 20). Despite extensive efforts by the FBI, Interpreter Multz has not been located since the interview. (R. 13, 31, 48). He does not hold a United States passport and his contact information is outdated. (R. 8, 13, 31). Defense Counsel conducted his own investigation and claimed that Interpreter Multz fled due to reasons related to DRB activities. (R. 18, 29). He also provided an from a Professor of Linguistics explaining the difficulty in translating Remsi to English. (R. 18, 21). Between February and July 2015, Respondent returned to Remsen. (R. 13, 31). During this period, in May 2015 a former Bank Plaza employee provided the FBI with a memorandum once again implicating Respondent in diverting bank charitable donations to terrorist groups through a special bank unit. (R. 12, 13). At this time, the FBI reopened the investigation. (R. 13, 37). Between August 2015 to February 2016, the FBI conducted its own extensive investigation. (R. 14). This included a review of bank records, interviews of bank employee witnesses and people from the charities, and collecting tens of thousands of documents from Bank Plaza, the charities, and lawyers and accountants associated with the organizations. (R. 7, 13). This led to the identification of twenty-five alleged charitable Remsen organizations that had received funding from Bank Plaza. (R. 14). The FBI was able to confirm that most of these organizations 2

11 disbursed a portion of these donations to terrorist organizations, including DRB. (R. 13, 14). The FBI had developed enough evidence to implicate that Respondent in knowingly participating in or directing financial transactions to DRB. (R. 14). On August 17, 2015, an unknown source leaked a video to the press revealing an interrogation of Respondent conducted by the RIA, Remsen s highest-level investigative agency. (R. 3, 14, 32, 35). This recording was posted on the Internet with English subtitles and was widely viewed throughout the world. (R. 14, 16). The FBI only learned of this interview after the footage was leaked, and was never informed that this interview took place. (R. 14, 33). Agent Beda actively avoided watching the video, but it is possible other agents and witnesses saw the recording. (R. 14). In her statements, Respondent identified some of the charities that the Government had already confirmed through their own investigative efforts that were being used to funnel money to DRB, and named individuals in the bank unit responsible for arranging the contributions to these charities. (R. 14). On April 11, 2016, Respondent was indicted and charged with a violation of 18 U.S.C. 2339B by conspiring to provide and providing material support to a designated foreign terrorist organization. (R. 2, 11, 14). Four days later, FBI agents executed a search and arrest warrant at Respondent s home. (R. 3, 15, 42-43). Upon arrival, Respondent was entertaining a large group of guests, so agents announced they were there to search the house and arrest Respondent. (R. 3, 15, 42). Although loud at first, the party quickly turned to hushed whispers. (R. 15). FBI agents isolated Respondent, directed her to a chair away from the crowd, and two agents stationed themselves on both sides while other agents searched her home. (R. 3, 15, 42-43). While Respondent was under arrest, one of the agents turned to Respondent and commented, It s disgusting that you would help funnel money to terrorists who kill their own 3

12 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. 3-4, 15). Several agents and many guests heard the comment. (R. 3, 15, 43). In response to the comment, Respondent remained silent and looked straight ahead. (R. 4, 15, 43). Agent Beda later read Respondent her Miranda warnings. (R. 15). Procedural History On August 1, 2016, a hearing on Respondent s three motions in limine was held. (R ). Respondent moved to exclude the unavailable translator s statements because the testimonial statements were made by the interpreter and Respondent had no prior opportunity to cross-examine him about the statements. (R. 2). Respondent also motioned for a Kastigar hearing requiring the Government to establish an independent source for any evidence that would be used against her at trial, after the widespread distribution of the leaked recording showing Remsen government officials interview with Respondent. (R. 3). Last, Respondent motioned to exclude evidence of her post-arrest, pre-miranda silence in response to the agent s statement as substantive evidence in the prosecutor s case in chief. (R. 3). On August 1, 2016, the United States District Court for the Eastern District of Boerum heard oral arguments on the pre-trial motions, and on August 11 granted all three motions in favor of Respondent. (R. 3, 22-46, 47-52). On August 25, 2016, a Kastigar hearing was conducted, and the Government was precluded from offering any evidence developed after the recording was publicly released. (R. 3, 53). Pursuant to 18 U.S.C. 3731, the United States filed an interlocutory appeal to the United States Fourteenth Circuit Court of Appeals. (R. 2-10). On February 22, 2017, the Fourteenth Circuit affirmed the District Court on all issues, holding that: (1) admission of translated statements attributed to Respondent by an interpreter not 4

13 subject to cross-examination violated the Confrontation Clause, (2) the District Court correctly found Respondent entitled to derivative immunity and it was proper to require the Government to submit to a Kastigar hearing, and (3) exclusion of Respondent s silence as evidence in the Government s case-in-chief was correct. (R. 5-7). The Government subsequently filed a petition for a writ of certiorari to the United States Supreme Court, and certiorari was granted on October 16, (R. 1). SUMMARY OF THE ARGUMENT In the present case, the lower court incorrectly ruled that: (1) admission of Respondent s statements translated by an interpreter not subject to cross-examination violated the Confrontation Clause, (2) the District Court found Respondent entitled to derivative use immunity, and (3) the exclusion of evidence of Respondent s silence in the Government s case-in-chief was proper. First, where an interpreter is unavailable at trial, the Confrontation Clause of the Sixth Amendment is not violated post-crawford because Respondent is the declarant of translated testimonial statements made through the interpreter. The interpreter was merely a language conduit through which Respondent could communicate with Agent Malone. Respondent s translated statements are fairly attributable to her under the factors established by United States v. Nazemian to find Respondent is the declarant of the testimonial statements and confrontation issues do not apply to her own statements. The translations were not made by the interpreter separately or independently because Respondent and Agent Malone were involved with the whole process. Additionally, admissibility of Respondent s translated statements does not violate Crawford because Interpreter Multz acted on behalf of Respondent as her agent. Respondent s statements are her own admissions. Respondent was sufficiently fluent in English to understand the translations and point out inaccuracies during the interview, and Interpreter Multz had sufficient 5

14 capacity to translate her statements from Remsi to English. Thus, no confrontation issue exists because Agent Malone s testimony at trial is based on his verbatim record from the interview. Next, admission of Respondent s compelled testimony by the Remsi government does not violate her Fifth Amendment rights because actions by foreign sovereigns are not protected by the privilege against use or derivative use immunity. Without direct and purposeful involvement by the U.S. Government in compulsion or use of the testimony, the U.S. and Remsen Governments are not same sovereigns or even agents of one another within the meaning of the Fifth Amendment. U.S. officials did not cooperate with Remsen in obtaining Respondent s compelled testimony or in subsequently leaking the recording to the public. Further, the lower court incorrectly relied on United States v. Allen, stating that the Fifth Amendment requires derivative use immunity for statements compelled by a foreign sovereign. Allowing this overextension of Fifth Amendment protections would go far beyond its intended purpose, while placing a heavy burden on the U.S. government and judiciary when conducting cross-border investigations. Lastly, the Government should be allowed to use Respondent s silence as substantive evidence of guilt because her silence took place after arrest but before Miranda warnings were administered. Under Miranda, this Fifth Amendment privilege is not triggered until a defendant is under custodial interrogation. In this case, although Respondent was in custody, she had not yet been compelled to speak by FBI officials, rendering the Fifth Amendment privilege inapplicable. Only when a government official induces a defendant s silence by reading Miranda warnings is that silence protected by the privilege against self-incrimination. The FBI s comment did not induce Respondent s silence because it required no response, and elicited no response. Thus, Miranda under the Fifth Amendment was not triggered. 6

15 I. THE SIXTH AMENDMENT CONFRONTATION CLAUSE IS NOT VIOLATED BY INTERPRETER S UNAVAILABILITY AT TRIAL BECAUSE RESPONDENT IS THE DECLARANT OF THE STATEMENTS AND THE INTERPRETER WAS A LANGUAGE CONDUIT WHO SPOKE ON RESPONDENT S BEHALF AS AN AGENT The Sixth Amendment Confrontation Clause imparts that [i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him. U.S. Const. amend. VI. When hearsay is admissible in a criminal proceeding under a hearsay exception, the Sixth Amendment's Confrontation Clause merely provides a defendant the right to confront adverse witnesses. Crawford v. Washington, 541 U.S. 36, (2004) (stating that it is when the prosecution seeks to use an adverse witness to testify against the accused that the constitution demands confrontation). Courts have historically held that a defendant is the declarant of statements even when they have been spoken through an interpreter. Guan Lee v. United States, 198 F. 596 (7 th Cir. 1912). Prior to and after Crawford s interpretation of the Confrontation Clause, a vast majority of courts follow the prevailing language conduit theory that translated statements are admissible in court because they are mere translations of a defendant s testimonial statements. See United States v. Boskovic, 472 F. App'x 607 (9th Cir. 2012); United States v. Romo-Chavez, 681 F.3d 955 (9th Cir. 2012); United States v. Santa-cruz, 480 F. App'x 441 (9th Cir. 2012); United States v. Vidacek, 553 F.3d 344 (4th Cir. 2009); United States v. Sanchez-Godinez, 444 F.3d 957 (8th Cir. 2006). E.g., United States v. Martinez Gaytan, 213 F.3d 890 (5th Cir. 2000); United States v. Garcia, 16 F.3d 341 (9th Cir. 1994); United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991); United States v. Ushakow, 474 F.2d 1244 (9th Cir. 1973). When an interpreter acts as a language conduit or an agent for the defendant, there is no hearsay issue because the defendant cannot claim that he was denied the opportunity to confront himself. United States v. Orm Hieng, 679 F.3d 1131, 1139 (9th Cir. 2012) (citing Nazemian, 948 F.2d at 522). 7

16 Before Confrontation Clause and hearsay issues are implicated, a court must first determine whether an interpreter's statements should be attributed to the interpreter or original speaker. Nazemian, 948 F.2d at A four factor test is normally applied to determine whether translated testimonial statements are fairly attributed to a defendant to ensure reliability of the out-of-court statements. Romo-Chavez, 681 F.3d at 959 (citing Nazemian, 948 F.2d at 527); Martinez Gaytan, 213 F.3d at 892. The Nazemian factors to be weighed include: (1) which party supplied the interpreter, (2) whether the interpreter had any motive to mislead or distort, (3) the interpreter's qualifications and language skill, and (4) whether actions taken subsequent to the conversation were consistent with translated statements. Nazemian, 948 F.2d at 527. Under the language conduit theory, a translator may also be viewed as a defendant s agent and thus the translated statements are credited to the defendant. United States v. Desire, 502 F. App'x 818, 821 (11th Cir. 2012); Santa-Cruz, 480 F. App'x 441, 443 (9th Cir. 2012). See United States v. Lopez, 937 F.2d 716 (2d Cir.1991); United States v. Alvarez, 755 F.2d 830, (11th Cir. 1985); United States v. Da Silva, 725 F.2d 828, 832 (2d Cir. 1983). Since the translator is considered the defendant s agent, translated statements may be admitted at trial as non-hearsay opposing party admissions. Romo-Chavez, 681 F.3d at 959. A defendant s own outof-court admission is not hearsay and thus admitting these statements does not violate the Confrontation Clause. United States v. Brown, 441 F.3d 1330, (11th Cir. 2006). This Court should follow the view held by the majority of federal courts that the Confrontation Clause is not violated by an interpreter not subjected to cross-examination because Respondent is the declarant of the statements. Interpreter Multz was merely a language conduit assisting Respondent to communicate with the FBI, and the statements are fairly attributed to Respondent. Confrontation issues are also avoided because Interpreter Multz was a language 8

17 conduit as Respondent s agent. Further, Respondent sufficiently understood English and the interpreter had sufficient capacity to translate, and thus Agent Malone can testify to Respondent s non-hearsay party-opponent admissions based on his verbatim transcript from the interview. A. The Confrontation Clause is Not Implicated Because Respondent Was The Declarant Of the Statements And Interpreter Multz Was Merely A Language Conduit Through Which She Could Communicate With the FBI Many courts post-crawford continue to use the Nazemian factors for translated statements. [C]ompliance with the Nazemian requisites - particularly enough language competence that the interpreter s statements can be viewed as those of the suspect will be the protection against inaccurate translation prejudicial to the defendant. Romo-Chavez, 681 F.3d at 965 (Berzon, M. concurring) (relying on Nazemian, 948 F.2d at ). 1. The Translated Statements Are Fairly Attributable to Respondent and Reliable Determination of the declarant of a translated statement is considered on a case-by-case basis of whether, under the particular circumstances, the translated statement may fairly be attributed to the original speaker. Id. at 527. See Garcia, 16 F.3d at 342. Consideration of these factors supports the finding that the translated statements are fairly attributable to Respondent and are thus she does not need to confront the interpreter. The fact that Interpreter Multz was hired by the Government is not dispositive of the translated statements admissibility. Nazemian, 948 F.2d at In Romo-Chavez, even where a police officer was translating the defendant s statements, this factor weighed in favor of the Governments because the translating officer did not initiate any questioning and thus was not simultaneously acting as a government agent. Id. at Here, Respondent requested a translator and Agent Malone did not attempt to translate the interview, but instead hired a Remsi interpreter from a reputable translating agency used frequently by the FBI. (R. 17, 24). Although 9

18 Respondent refused to allow the interview to be recorded, Agent Malone made an effort to preserve the statements, which would indicate no motive on his part to prejudice Respondent. A court should presume that a translator hired by the Government is inherently biased, and should only consider objective evidence of bias. Martinez Gaytan, 213 F.3d at 892. Even where a translator may be biased, however, any intentional mistranslation could potentially threaten either party s objective in the long run. Nazemian, at 528. The only evidence that Interpreter Multz would have a motive to mislead is based on defense counsel s own inherently biased investigation, rather than objective evidence. (R.18). Although the FBI is unable to locate Interpreter Multz, who does not carry a U.S. passport, they have done their due diligence through exhaustive efforts to locate him. (R. 13). If Respondent had any concerns about bias regarding a translator hired by the FBI, she had one month after she agreed to the interview to hire her own interpreter. (R. 13). Further, similar to the reasoning in Nazemian, even if there was a motive to mislead any misinterpretations would likely hinder the FBI investigation just as much as it would hurt Respondent. Whether a translator's skill with the language makes him sufficiently fluent under the circumstances is a question of fact. Id. at 960. The facts in Romo-Chavez indicated the translator was sufficiently fluent because he grew up speaking Spanish and conducted Spanish interviews regularly, and the defendant never claimed during the interview that he did not understand the translator s questions. Id. This was found in favor of the Government, even where the defendant did not speak any English and he had no way of knowing if the translations were accurate. Id. The facts here unquestionably demonstrate that Interpreter Multz is qualified to interpret Remsi. His home country is Remsen, which would provide strong knowledge of this more difficult language because he would have grown up speaking Remsi. (R. 13, 21). He is certified to 10

19 specifically translate Remsi, was hired from a reputable interpreting agency, passed both a written and oral certification, and took an oath. (R. 13, 27). Further, because Respondent speaks English, she has enough knowledge to have raised any issues about the accuracy of Interpreter Multz translations during the interview. (R. 24). It appears Respondent thought the translations were accurate during the interview, and is now attempting to make a post hoc, self-serving denial... insufficient to tip this factor in [her] favor. Romo-Chavez, at Additionally, Agent Malone can explain any apparent inaccuracies in court by reading his verbatim transcript of the interview. The concurrence in Romo-Chavez disagreed with the majority s finding that the translator was a language conduit, noting that one of the reasons for this was due to the absence of a record from the interrogation that could be presented at trial. Id. at 966. Here we do not have that problem, because Agent Malone can testify to his verbatim record of the interview. (R. 13, 17). Last, the court looks at whether a defendant s subsequent conduct or actions were consistent with her statements. This action must be objective rather than what the party is arguing at trial. Romo-Chavez, 681 F.3d at 960. Here, during a subsequent interrogation in the foreign country of Remsen, Respondent provided detailed information that was sufficiently similar to the information she provided during her interview about the role she played as Bank Plaza CEO in raising money for Remsen charities. (R , 31).Thus, Interpreter Multz is a language conduit, and Respondent as the declarant is seeking to impermissibly expand the protections of the Sixth Amendment to apply to statements she made herself. 11

20 2. Interpreter Multz s Translations Were Not Made Independently From Respondent This Court should apply the prevailing view from the Ninth Circuit s language conduit theory until this is undermined by clear Supreme Court precedent, which has not occurred. Even the Supreme Court agrees that there is significant confusion and that the Supreme Court clearly disagrees [on the Confrontation Clause analysis], though it cannot settle on a reason why. Williams v. Illinois, 567 U.S. 50, 120 (2012) (Kagan E., dissenting). i. Interpreter Multz s Translations Were Not Separate From Respondent The Fourteenth Circuit s categorical rule that an interpreter must be available for crossexamination is improper because they incorrectly relied on the Eleventh Circuit's rejection of the long-standing, predominant language conduit theory. (R. 4-5). The court held that an interpreter s statements are separate from the defendant. United States v. Charles, 72 F.3d 1219 (2013). An interpreter employs independent judgment when translating a defendant's statements making the interpreter a separate declarant, not a mere language conduit. Id. at There are several crucial differences between this case and Charles. The most important distinctions are that the defendant only spoke Creole, and was provided an over-the-phone translator. Id. The interpreter was therefore translating from a remote location through a telephone to someone who could not hear the translations or understand them because she didn t speak English. Id. Here, the interpreter sat face to face with Respondent and Agent Malone in the interview room, translating Respondent s statements into English, which she speaks fluently, while Agent Malone listened and simultaneously recorded every word spoken. (R. 13). Nothing was done by Interpreter Multz independently, because he was acting as a channel through with Respondent could communicate with Agent Malone. Further, not only would Respondent be able to verify the 12

21 accuracy of the statements as an English speaker, Agent Malone can attest to the translations because he has a transcript of statements he heard simultaneously from both parties. The translations in Charles were also made under different circumstances. The translations were part of an interrogation while defendant was detained at the airport, not a scheduled interview like this case prior to any criminal charges, so there was no opportunity to acquire her own interpreter. Id. at Here, Respondent agreed to the interview in May 2014 and it took place in June 2014 she a month to hire her own interpreter if she had any concerns. (R. 13). Additionally, the translated statements in Charles were the only piece of evidence used to convict the defendant of the crime. Id. at The case against Respondent involves an abundance of evidence implicating Respondent aside from her statements stemming from an extensive investigation. (R ). ii. The Translations Were Not Performed Independently And Agent Malone s Testimony Is Not Surrogate Testimony The Fourteenth Circuit s comparison of Bullcoming v. New Mexico to the present case is also misplaced. 564 U.S. 647 (2011). In Bullcoming, the Confrontation Clause was implicated where a laboratory technician conducted independent blood testing of defendant s DNA. Id. at 651. The Supreme Court found that when introducing test results performed independently by one lab technician, with nobody else involved in the process, the person who conducted the testing is the adverse witness against the defendant under the Confrontation Clause and thus needed to be cross-examined. Id. at 663. Even if a substitute expert witness was familiar with the procedure, because she had no personal involvement in the testing her surrogate testimony did not pass constitutional muster under the Confrontation Clause. Id. While the laboratory technician was in fact an adverse witness who conducted independent testing of defendant s DNA, the translations in this case were made by Interpreter Multz 13

22 concurrently and in the presence of Respondent and Agent Malone. (R. 13). Agent Malone would not be providing surrogate testimony as a substitute witness like the prosecution attempted in Bullcoming because he participated in the interview and kept his own verbatim record of every statement made. (R. 13). Further, the prosecution in Bullcoming never claimed the original analyst was unavailable, but instead called an experienced analyst who had not participated or observed in the original blood testing. Here, the Government made extensive efforts to locate Interpreter Multz. (R. 13). Agent Malone is being used testify to Respondent s statements at trial, and he has direct involvement in this process to enable him to do so. Thus, the translations at issue in the present case were not done independently and Agent Malone is not a surrogate witness so no confrontation issue exists. B. The Confrontation Clause Is Not Violated After Crawford Where Interpreter Is A Language Conduit as Respondent s Agent And A Government Agent Testifies To Respondent s Non-Hearsay Party Opponent Admissions The Supreme Court in Crawford and later interpretations of the Confrontation Clause make clear that when a court admits a statement made by an available declarant whom the defendant has not had the opportunity to cross-examine, for a purpose other than for the truth of the matter asserted, the admissibility does not violate the Confrontation Clause. United States v. Jiminez, 564 F.3d 1280, 1287 (11th Cir. 2009) (relying on Crawford to hold that there is no doubt that the Confrontation Clause prohibits only statements that constitute impermissible hearsay. ). Where an interpreter acts as a defendant's agent with sufficient capacity and no motive to deceive, the translations do not constitute impermissible hearsay because the interpreter is merely a language conduit. Desire, 502 F. App'x at

23 1. Interpreter Was A Language Conduit As Respondent s Agent Interpreters are viewed as an agent of the defendant; hence the translation is attributable to the defendant as his own admission and is properly characterizable as non-hearsay under Rule 801(d)(2)(C) or (D)... Sanchez-Godinez, 444 F.3d at 960 (quoting Da Silva, 725 F.2d at 831); Lopez, 937 F.2d at 724. In Santa-Cruz, the Ninth Circuit once again followed the prevailing language conduit theory post-crawford to find that a federal agent could testify to translated statements in court because the interpreter was an agent of the defendant under Nazemian factors. 480 F. App'x at 442. Although the government provided the translator, the federal agent had never met him before and the defendant was aware of this at the time of the interview and did not object. Id. The defendant provided no evidence of interpreter s motive to mislead. Id. The interpreter had significant experience speaking and interpreting Spanish, which provided a basis for determining an interpreter s qualifications, and evidence of corroborating subsequent conduct was inapplicable. Correspondingly, Respondent not only knew Interpreter Multz was hired by the Government but asked them to provide the interpreter. (R. 13). Agent Malone had never met Interpreter Multz prior to the interview. Although defense counsel made claims that Interpreter Malone was associated with the terrorist group prior to the interview, no other evidence has been submitted to find a motive for him to mislead the FBI. (R. 18). Last, Interpreter Multz is a certified translator from Remsen, providing him with knowledge of the Remsi language. (R. 13). i. Respondent Was Sufficiently Fluent In English To Understand Translations In Sanchez-Godinez, the Eighth Circuit also relied on settled principles of law that apply the language conduit theory when deciding whether a translator is a language conduit acting as defendant s agent. Id. at 959. See Lopez, 937 F.2d at 724; Da Silva, 725 F.2d at Although 15

24 the person translating was acting as both a translator and government official, the statements were admissible because the defendant was sufficiently fluent in English and could have pointed out inaccuracies in the officer s translations. Id. at 960. Sanchez-Godinez relied on findings in Lopez and Da Silva. In Lopez, a non-spanish speaking informant was permitted to testify about a defendant s Spanish statements because his Spanish-speaking niece translated the statements to him simultaneously, and the defendants spoke English and heard the translations so it stands to reason that if [the translator] had distorted their conversation they would have noticed it and corrected her. 937 F.2d at 724. In Da Silva, the translator was deemed a language conduit because the defendant intentionally relied on him as an agent, despite his claim that the Spanish interpreter was unqualified because defendant s native language was Portuguese. 725 F.2d at However, the court found sufficient evidence to prove defendant spoke Spanish sufficiently, including speaking Spanish to officials without a translator, and reasoned he understood Spanish well enough to identify material inaccuracies in the Spanish translations and would have pointed them out during the interview. Id. at The facts in the present case are substantially similar to the prevailing theory used to find that an interpreter is a language conduit through an agency relationship with the defendant. Respondent intentionally relied on Interpreter Multz to assist her in communicating with Agent Malone, and thus gave him authority to speak on her behalf. (R. 24). She had time to hire her own Remsi interpreter to speak on her behalf, but she did not. (R. 13). Respondent speaks English, so she surely could point out inaccuracies in the translations made to Agent Malone. (R. 24). Even if it was only a basic understanding, the difference between English pronouns like "I" and "we are common knowledge. Thus, Respondent had sufficient capacity to understand the English translations, and by relying on Interpreter Multz to translate her statements she adopted him as her 16

25 agent and allowed him to represent her statements to Agent Malone, who can testify to her statements as admissible party opponent admissions. ii. Interpreter Had Sufficient Capacity To Translate Respondent s Statements Where a translator has sufficient capacity, a testimonial identity between the declarant and translator makes defendant s statement an admission. Desire, 502 F. App'x at 822. In Desire, the Eleventh Circuit found admission of translated statements made through two interpreters at the airport proper as non-hearsay party opponent admissions because the interpreters acted as defendant s agents. Id. The court reasoned that the interpreters had sufficient capacity to interpret defendant s statements, based on the officer s training and experience that allowed her to recognize that the defendant and translators understood each other. Id. Although the officer did not speak Creole, she observed they were communicating effectively, and she did not observe any problems with defendant s communication with the interpreters. Id. Both interpreters were certified, and one of the translators was the airport s designated interpreter. Id. Further, there was no evidence of a motive for the interpreters to mislead the interrogating officers. Id. Interpreter Multz had more than a sufficient capacity to translate Respondent s statements. He is a certified Remsi interpreter, his home country was Remsi, and he was hired from a reputable interpreting agency. (R. 13). Although Agent Malone did not speak Remsi, the record does not indicate that he observed any apparent issues with the communication between Respondent and Interpreter Multz. There is no evidence of motive to mislead other than defense counsel s claim. Thus, Interpreter Multz had sufficient capacity to translate as Respondent s agent, and her statements are admissible as non-hearsay admissions by a party opponent. For all the foregoing reasons, the interpreter is not required at trial and Respondent s statement should be admitted. 17

26 II. FIFTH AMENDMENT PROTECTIONS DO NOT EXTEND TO STATEMENTS COMPELLED BY A FOREIGN GOVERNMENT BECAUSE SUCH A LAW WOULD GO FAR BEYOND ITS INTENDED CONSTITUTIONAL PURPOSE AND WOULD PLACE AN UNREASONABLE BURDEN ON THE GOVERNMENT The Fifth Amendment of the United States Constitution states that an individual has a right to refuse to answer questions in any civil, criminal, administrative, judicial, investigatory or adjudicatory proceeding where the information could be used against him. Kastigar v. United States, 406 U.S. 441 (1972) (citing U.S. Const. amend. V). When the Government compels statements from a witness, immunity from use and derivative use of those statements is required to protect the defendant s privilege against self-incrimination. Id. at 441. This Court has previously held that the Fifth Amendment privilege against compulsory self-incrimination protects against any disclosures they reasonably believed could be used in a criminal prosecution or lead to other evidence. Id. Derivative use immunity prohibits the direct and indirect use of a witness s compelled, immunized statements against her at a future criminal trial. See Kastigar, 406 U.S. at 453 (citing 18 U.S.C. 6002). Accordingly, should the government seek to prosecute a previously compelled individual, it must prove that the evidence used is derived from a legitimate source wholly independent from the compelled testimony. United States v. Byrd, 765 F.2d 1524, 1532 (11th Cir. 1985) (relying on Kastigar, 406 U.S. at 453). While the prosecution carries this heavy burden, the government need only make this showing by a preponderance of the evidence. United States v. Nanni, 59 F.3d 1425, (2d. Cir. 1995). This Court has examined the language of the Self-Incrimination Clause with a focus on its context within the Fifth Amendment, and correctly interpreted the words any criminal case to refer only to any domestic criminal proceeding, as opposed to an international criminal proceeding. United States v. Balsys, 524 U.S. 666, (1998). Within this interpretation of the 18

27 Fifth Amendment, any criminal proceeding would not apply to all criminal proceedings worldwide because it would be a burden on the government to apply the U.S. Constitution to such a broad spectrum of nations. Id. Although the Fifth Amendment forbids admission of evidence derived from immunized testimony, this rule applies only when the government that compelled the testimony was the same government seeking to admit the testimony. United States v. Murdock, 284 U.S. 141, 149 (1931) (emphasis added). Therefore, Fifth Amendment protections would not apply in foreign criminal cases because statements provided to foreign sovereigns are not and have never been protected by the Constitution since foreign governments are not the same sovereign Id. This Court should find that Respondent s statements compelled by a foreign sovereign should not be granted Fifth Amendment protection because the U.S. Government had no involvement in compelling or releasing the statements. The U.S. and Remsen Governments are not same sovereigns and cannot be held accountable for each other s actions. To allow for a constitutional extension of this magnitude, and rely on Allen and its decision, would place a burden on our Government and allow foreign sovereigns to hinder U.S. criminal investigations. A. Respondent s Compelled Testimony is Not Protected Under the Privilege of Immunity Because The United States Had No Involvement In The Interview and The Fifth Amendment Has Never Extended to Foreign Sovereigns Over the past two centuries, this Court has addressed the question of whether one jurisdiction in our federal structure may compel a witness to give testimony which might incriminate him in another jurisdiction. Murphy v. Waterfront Comm n, 378 U.S. 52, 54 (1964), See, e.g. Murdock, 284 U.S. at 141 (applying analysis of same sovereign principle prior to implementation of Fifth Amendment Self-Incrimination Clause in state courts and superseded by Balsys by this Court). The privilege was therefore only applicable to the same sovereign. Id. 19

28 For a defendant witness to be afforded immunity, and thus protection, under the Fifth Amendment, this very Court developed, combined, and resurrected its reading of English precedent, originally outlined in the past by applying a same-sovereign analysis in its most recent case, Balsys. See Balsys, 524 U.S. at 673. In a series of cases, this Court has either held or suggested that the Fifth Amendment Privilege against compelled self-incrimination applied only when the threat of future prosecution based upon compelled testimony came from the same jurisdiction or sovereignty. See, e.g. Hale v. Henkel, 201 U.S. 43, 69 (1906); Murdock, 284 U.S. at 148; Feldman v. United States, 322 U.S. 487, 492 (1944); Knapp v. Schweitzer, 357 U.S. 371, 379 (1958). 1. The United States And Remsen Governments are Not Same Sovereigns Because There was No Purposeful and Direct Involvement Between Nations Under the same-sovereign principle, the same government compelling the witness would need to be the same government using the compelled testimony in order for Fifth Amendment protections against self-incrimination to apply. Balsys, 524 U.S. at 699. This Court has implied that only where there is cooperative conduct between the United States and foreign nations would there be an exception to this rule. Id. at The samesovereign analysis indicates that the privilege might be extended in the future if it can be shown that the United States was granting immunity from domestic prosecution for the sole purpose to share evidence with other nations. Id. To obtain the privilege of immunity, the level of cooperative conduct between the United States Government and a foreign sovereign must be so direct and purposeful in both its compulsion and use of the compelled testimony that it created an agency relationship between the two countries. Balsys, 524 U.S. at 699. See In Re Impounded, 178 F.3d 150, 154 (3d Cir. 20

29 1999) (applying Balsys analysis and finding sufficient cooperative conduct where it can be shown with reasonable certainty the intent of said conduct was to aid in foreign prosecution). In Balsys, the foreign authority investigating the witness for suspected misrepresentation on his visa application shared information with U.S. authorities. Balsys, 524 U.S. at 669. The defendant invoked his Fifth Amendment privilege when he feared his statements would lead to prosecution in his home country due to foreign policy agreements between the U.S. and Lithuania. Id. at 670. Although the defendant had shown that the U.S. assumed an interest in defendant s foreign prosecution, it was not to the level of cooperative conduct necessary because the U.S. Government s agreement with sovereign nation was not sufficiently purposeful and direct. Id. at 699. The point would be that the prosecution was as much on behalf of the United States as of the prosecuting nation [making] one nation the agent of the other. Id. at See e.g. United States v. Behety, 32 F.3d 503, 511 (11th Cir. 1994) (holding that Guatemalan officials did not become agents of the U.S. when they stopped and searched defendant s boat on a tip from the DEA). In the case at hand, the United States Government did not directly nor purposefully aid in the compulsion or release of Respondent s testimony. (R. at 7). Respondent's testimony was compelled by a foreign sovereign, acting independently from our Government, and further publicized by a rogue actor. (R. at 9). Moreover, unlike in Balsys, Murphy, and Murdock, there is no reason to believe the U.S. Government even knew Respondent was being compelled to testify by the foreign sovereign. (R. at 13). In fact, it was not until May of 2015, two months prior to the leaked footage, that Agent Beda of the FBI received information from a former Bank Plaza employee suggesting Respondent s involvement with funneling money to one or more terrorist organizations and decided to reopen the investigation. (R. at 13). 21

30 If this Court extends the Fifth Amendment privilege of immunity to statements compelled by foreign sovereigns, it would be going against the very nature of its own decision in Balsys. Although factually distinguishable, the level of cooperation in Balsys far outweighs that of our present case. 2. To Extend Fifth Amendment Immunity To Statements Compelled by Foreign Governments Would Allow Foreign Powers to Meddle in U.S. Judicial Proceedings The plain reading of the Fifth Amendment states no person shall be compelled in any criminal case to be a witness against himself U.S. Const. amend. V. This Court s very own Justice Souter has stated that concern with foreign prosecution is beyond the scope of the Fifth Amendment privilege against self-incrimination. 1 Balsys, 524 U.S. at 751. Application of the privilege towards compelled statements by foreign sovereigns would expand the Fifth Amendment far beyond its intended meaning. Expansion of the Fifth Amendment would compromise the national sovereignty of the United States if our system were made to depend on the actions of a foreign government beyond our control. U.S. v. Lileikas, 899 F.Supp. 802, 807 (D. Mass. 1995) (quoting United States v. Araneta, 794 F.2d 920, 926 (4th Cir. 1986)). To not allow Respondent s statements that were compelled by the Remsen government, without any involvement by the U.S. Government, would wreak havoc on our judicial system by allowing a foreign government to meddle in a large-scale investigation such as this one. It would completely dismantle a three-year investigation, with untainted witnesses, by punishing the Government because of actions taken by a foreign government. Armed with the decision made by the Fourteenth Circuit, a foreign government would need only compel the American citizen s testimony and release it to the world, tainting any further 1 Chief Justice Rhenquist, Justice Stevens, Justice O Connor, and Justice Kennedy joined in the opinion. 22