Case No UNITED STATES OF AMERICA Petitioner, VICTORIA SPECTOR Respondent.

Transcription

1 Team 5R Case No UNITED STATES OF AMERICA Petitioner, v. VICTORIA SPECTOR Respondent. On Writ of Certiorari to the United States Court of Appeals For the Fourteenth Circuit BRIEF FOR RESPONDENT

2 QUESTIONS PRESENTED I. The Government provided an interpreter who translated between Remsi and English for during a voluntary interview. Throughout the interview, the interpreter translated a word in Remsi inconsistently between the English pronouns, we and I. The Government cannot locate the interpreter, who is unavailable for purposes of trial. Is Defendant s Sixth Amendment right to confrontation under Crawford v. Washington violated if the interpreter s translated statements are admitted without permitting Defendant the opportunity to cross-examine the interpreter? II. The Remsen government compelled Defendant s testimony under threat of contempt. Defendant s testimony was later leaked to the public. Is Defendant s Fifth Amendment privilege against self-incrimination violated if the U.S. government admits testimony that may have been tainted by the leak of Defendant s compelled testimony when the testimony is compelled by a foreign sovereign? III. An FBI agent accused Defendant of help[ing] funnel money to terrorists who kill their own people and who hate the United States. Defendant did not respond to the agent and stared straight ahead. Does the Government violate Defendant s Fifth Amendment privilege against self-incrimination by admitting Defendant s silence in the face of the accusation in its case-inchief when Defendant had not been Mirandized, but was in custody? ii

3 TABLE OF CONTENTS Page QUESTIONS PRESENTED i TABLE OF CONTENTS ii TABLE OF AUTHORITIES..vi STATEMENT OF THE CASE 1 SUMMARY OF THE ARGUMENT..3 ARGUMENT...6 I. BECAUSE THE INTERPRETER IS A WITNESS INDEPENDENT OF THE DEFENDANT AND IS UNAVAILABLE TO TESTIFY AT TRIAL, HIS TRANSLATED STATEMENTS MUST BE EXCLUDED TO PROTECT DEFENDANT S SIXTH AMENDMENT RIGHT TO CONFRONTATION. 6 a. Defendants must be given the opportunity to cross-examine interpreters because interpreters are independent declarants...6 i. The intricacies of the Remsi language also mandate that the government provide interpreter Multz to explain his translation b. Even if this court chooses not to adopt the categorical rule that interpreters are independent declarants, the interpreter would still be deemed an independent declarant based on the Ninth Circuit s four-part test. 10 c. As a policy matter, this court should also find that interpreters are independent declarants of translated statements II. DEFENDANT WAS ENTITLED TO A KASTIGAR HEARING TO PRESERVE HER FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION BECAUSE THE REMSEN GOVERNMENT COMPELLED HER TESTIMONY. 12 a. The privilege against self-incrimination applies regardless of whether a defendant is compelled to testify by the U.S. Government or a foreign sovereign i. The Fifth amendment injury to defendant occurred at the time of trial, not at the time of compulsion.. 15 iii

4 ii. The same-sovereign principle does not apply when the prosecuting authority is bound by the Fifth Amendment..16 b. Policy considerations favor protecting defendants compelled statements in order to prevent the government from working in tandem with foreign sovereigns to compel testimony and use it in domestic prosecutions. 18 c. A Kastigar hearing is required to ensure that defendant is in the same position as she would been in had the Remsen government not compelled her to testify III. THE PROSECUTION S USE OF DEFENDANT S POST-ARREST, PRE- MIRANDA SILENCE IN THEIR CASE-IN-CHIEF WOULD VIOLATE THE FIFTH AMENDMENT BY COMPELLING HER TO BE A WITNESS AGAINST HERSELF WHEN SHE WAS CONFRONTED WITH AGENT AMARAY S ACCUSATION.. 21 a. Because the Fifth Amendment s constitutional protections exist independently of the Miranda warnings, defendant had a right to silence when she was arrested, regardless of whether the agents had read her the Miranda warnings i. There is no logical distinction to be made between post-miranda silence and pre-miranda silence for purposes of the prosecution s case-in-chief because a defendant s right to silence is common knowledge 24 ii. Holding that defendant s postarrest, pre-miranda silence can be used against her in the prosecution s case-in-chief would incentivize law enforcement officers to delay providing Miranda warnings b. When the FBI agents placed defendant in custody, they triggered the defendant s privilege against self-incrimination because they accused the defendant of criminal conduct i. Being in custody exposed the defendant to inherently compelling pressures because she was forced to either speak out or remain silent and have that silence be used against her ii. Even if custody alone was insufficient to induce defendant to remain silent, Agent Amaray s accusation triggered defendant s constitutional right to silence.. 28 iv

5 c. Even if the use of postarrest, pre-miranda silence in the prosecution s case-inchief does not violate the Fifth Amendment privilege against self-incrimination, such silence should still be excluded because its probative value is substantially outweighed by its unfair prejudicial effect...30 d. Pre-Miranda silence has minimal probative value because it is ambiguous..30 e. The prejudicial effect of admitting pre-miranda statements is extremely high. 31 CONCLUSION v

6 TABLE OF AUTHORITIES Cases: Page(s) Bram v. United States 168 U.S. 532 (1897) 14, 15 Brogan v. United States, 522 U.S. 398 (1998).30 Crawford v. Washington, 541 U.S. 36 (2004). 6, 7 Doyle v. Ohio, 426 U.S. 610 (1976) 22, 23 Feldman v. United States, 322 U.S. 487 (1944) 16 Fletcher v. Weir, 455 U.S. 603 (1982) 23 Griffin v. California, 380 U.S. 609 (1965) 21 Hoffa v. United States, 385 U.S. 293, 304 (1966) 20 Hoffman v. United States, 341 U.S. 479 (1951) 13 In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 177 (2d. Cir. 2008) Kastigar v. United States, 406 U.S. 441 (1972).. 3, 4, 12, 13, 14, 15, 20, 21 Michigan v. Tucker, 417 U.S. 433 (1974) 24 Miranda v. Arizona, 384 U.S. 436 (1966)..22, 23, 24, 25, 26, 27, 28, 29 Murphy v. Waterfront Comm n, 378 U.S. 52 (1964) 12, 13, 16, 20 vi

7 Old Chief v. United States, 519 U.S. 172 (1997) 29 Quinn v. United States, 349 U.S. 155 (1955). 21 Rhode Island v. Innis, 446 U.S. 291 (1980) 28 Taylor v. State, 226 Md. App. 317 (2016)..7 United States v. Allen, 864 F.3d 63 (2d. Cir. 2017) 14, 15, 16, 17, 18, 19 United States v. Balsys, 524 U.S. 666 (1998) 16, 17, 18 United States v. Charles, 722 F.3d 1319 (11th Cir. 2013) 7 United States v. Flecha, 539 F.2d 874 (2d. Cir. 1976) 26 United States v. Frazier, 408 F.3d 1102 (8th Cir. 2005) 23, 27, 28 United States v. Hale, 422 U.S. 171 (1975) 30 United States v. Hernandez, 948 F.2d 316 (7th Cir. 1991)..26 United States v. Hubbell, 530 U.S. 27 (2000) 13, 21 United States v. Moore, 104 F.3d 377 (D.C. Cir. 1997).. 24, 25, 26, 27 United States v. Murdock, 284 U.S. 141 (1931) 16 United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991)..10 vii

8 United States v. Stein, 541 F.3d 130 (2d Cir. 2008) 17 United States v. Velarde-Gomez, 269 F.3d 1023 (9th Cir. 2001). 22 United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) 15 United States v. Vidacak, 553 F.3d 344 (4th Cir. 2009) 8 United States v. Whitehead, 200 F.3d 634 (2000) 22 Wainwright v. Greenfield, 474 U.S. 284 (1986) 22 Watts v. State of Indiana, 338 U.S. 49 (1949)..30 Constitutional Provisions: U.S. Const. amend. V...12 U.S. Const. amend. VI 6 Rules: FED. R. EVID , 29, 30 FED. R. EVID. 801(d)(2)(B). 21, 30 Other Authorities: Muneer I. Ahmad, Interpreting Communities: Lawyering Across Language Difference, 54 UCLA L. REV. 999 (2007).9 Diane Marie Amann, A Whipsaw Cuts Both Ways: The Privilege Against Self-Incrimination in an International Context, 45 UCLA L. REV (1998) 17 Neal Modi, Toward an International Right Against Self-Incrimination: Expanding the Fifth Amendment s Compelled to Foreign Compulsion, 103 VA. L. REV. 961 (2017)..17 viii

9 National Association of Judiciary Interpreters and Translators, Frequently Asked Questions about Court and Legal Interpreting and Translating, (last visited Feb. 7, 2018)..7 Richard Rogers et al., Everyone Knows Their Miranda Rights : Implicit Assumptions and Countervailing Evidence, 16 Psychol. Pub. Pol y & L. 300, 302 (2010) 24 Casen B. Ross, Comment, Clogged Conduits: A Defendant s Right to Confront His Translated Statements, 81 U. CHI. L. REV (2014) 8, 11 Public Accessibility and Service, Director's Annual Report (Administrative Office of the US Courts 2013), online at DirectorAnnualReport/annual-report -2013/the-courts/public-accessibility-and-service.aspx (visited Feb 7, 2018)..12 ix

10 STATEMENT OF THE CASE Defendant Victoria Spector is a citizen of Remsen. R. at 2. Ms. Spector was born in Remsen and her native language is Remsi. R. at 17. Ms. Spector is the Chief Executive Officer of Bank Plaza, a U.S. branch of the National Bank of Remsen located in Boerum County. R at 2, 12. In March 2014, the Federal Bureau of Investigation ( FBI ) began investigating whether Bank Plaza was diverting donations from legitimate Remsen-based charities to the foreign terrorist group, DRB, which is also located in Remsen. R. at 2, 12. DRB s name loosely translates to preserve our heritage. R. at 2. As part of this investigation, Defendant agreed to an interview. Id. Because Defendant is more fluent in Remsi than English, she was provided a translator by the name of Erik Multz. R. at 3. Mr. Multz translated the Agent s questions from English to Remsi and subsequently translated Ms. Spector s answers from Remsi to English. R. at 3. According to Linguistics Professor Ana Ruma, is very difficult to translate from Remsi to English and from English to Remsi. R. at 17. The Remsi language is a distant cousin of Cyrillic. R at 33. Unlike other languages, Remsi has four personal pronouns to address the second person. R. at 18. Although the interview was not video recorded, an FBI agent created a record of answers given by Ms. Spector, as they were translated by Mr. Multz. R. at 3, 13. In the interview, Ms. Spector provided information about recommending charities for the bank to donate to. R. at According to the agent s record of answers, Mr. Multz switched between the pronouns we and I midsentence and at multiple times. R. at At the time of Ms. Spector s interview, Mr. Multz had only been working as a translator for the FBI for two months. R. at 13. Mr. 1

11 Multz had recently left Remsen, his native country, because of the violence attributed to DRB. R. at 13, 18. In February 2015, Ms. Spector travelled to Remsen. R. at 13. During her visit, the Remsen National Security Agency ( RIA ) compelled Ms. Spector to submit to an interview under threat of contempt and a refusal to allow her to return to Boerum. This interrogation was video recorded. R at 3. During the interview, Ms. Spector provided detailed information about Bank Plaza operations and the Bank s practices for raising money for charities. R. at 3. This video was later leaked to the press and posted on the internet. R at 3. News of this interrogation was reported by all major media outlets in the United States and the video that was distributed included English subtitles. R. at 14. On April 11, 2016, Ms. Spector was indicted by a grand jury on two counts: (1) Conspiracy to provide Material Support to a Foreign Terrorist Organization; and (2) Providing Material Support to a Foreign Terrorist Organization. R. at 11. On April 14, 2016, the FBI applied for, and was granted, an arrest warrant for Ms. Spector and a search warrant for her house. R. at 15. FBI agents executed the warrants the following day. Id. When agents arrived at Ms. Spector s house, she was having a party about 50 friends and family present. R. at 3. FBI agents placed Ms. Spector in a chair away from the guests, and began a search of the home. Id. During the search of Ms. Spector s house, FBI Agent Maria Amaray turned to Ms. Spector and stated, 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. Ms. Spector did not respond to Agent Amaray s statement and stared straight ahead. R. at 15. Agent Serg 2

12 Beda then approached Ms. Spector, advised her of her Miranda rights, and placed her under arrest. R. at 15. SUMMARY OF THE ARGUMENT This Court should affirm the Fourteenth Circuit s decision because (1) the interpreter was a separate declarant of a translated statement such that the Confrontation Clause of the Sixth Amendment affords Defendant the right to cross-examine him; (2) the Fifth Amendment requires that Defendants statements that were compelled by the Remsen government be given use and derivative use immunity under Kastigar; and (3) the Fifth Amendment forbids prosecutors from using Defendant s postarrest, pre-miranda silence in the face of an accusation against her. The Confrontation Clause of the Sixth Amendment guarantees defendants in criminal prosecutions the opportunity to confront witnesses who bear testimonial statements against them. Testimonial statements may only be admitted if the declarant has been deemed unavailable and the defendant had a prior opportunity to cross-examine the declarant. When defendants are provided an interpreter, the Eleventh Circuit has ruled that the interpreter s statements are not equivalent with that of the defendant because interpreters reproduce words, but are unable to translate concepts. Therefore, the defendant must be given an opportunity to cross-examine the interpreter if those statements are to be admitted at trial. Even if this court chose not to adopt the rule that interpreters are considered independent declarants, the interpreter here would still be considered an independent declarant based on the four-part test put forth by the Ninth Circuit. Under that analysis, courts consider the following factors when determining if an interpreter is considered an independent declarant: (1) which party supplied the interpreter; (2) whether the interpreter had any motive to mislead or distort; 3

13 (3) the interpreter s qualifications and language skills; and (4) whether action taken subsequent to the conversation were consistent with the statements as translated. Here, the Government provided the interpreter, which indicates that the translator may have been more aligned with the Government s interests. The interpreter also had a substantial motive to mislead Ms. Spector or inaccurately translate her statements because he had recently fled Remsen because of the very terrorist group Ms. Spector is alleged to have supported. The interpreter is a certified translator, but he had only been working as a translator for all of two months before the interview in question. When considered as a whole, this four-factor test indicates that the interpreter is an independent declarant, who Defendant is entitled to crossexamine in order for the Government to use his statements in court. Entitling Defendant to cross-examination of the interpreter would allow defendants to ensure the accuracy of the testimony and would prevent already burdened immigrant populations. The Fifth Amendment s privilege against self-incrimination prevents U.S. prosecutors from offering evidence in U.S. courtrooms derived from a defendant s compelled statements. This privilege serves important values and prevents criminal suspects from being subjected to the cruel trilemma, in which they must choose between self-incrimination, perjury, or contempt. This Court s decision in Kastigar provides the framework for admitting only the evidence that remains untainted by a defendant s compelled statements, placing the burden on U.S. prosecutors to prove that their evidence is derived wholly independently from such compulsion. Here, Defendant is entitled to a Kastigar hearing to ensure that her compelled statements receive the use and derivative use immunity they merit. The Remsen government compelled Defendant to testify, threatening her with contempt if she refused to submit to an interrogation. A video of her detailed statements regarding her business and facilitation of donations to Remsi 4

14 charities was later widely leaked to the public, likely tainting the Government s witnesses who watched the video as it went viral. Since a Fifth Amendment violation occurs only at trial, the Government cannot seek to admit evidence derived from these statements regardless of the fact that the Remsen government was the sovereign that compelled them. A contrary holding may otherwise tempt the Government to work in tandem with other governments to compel testimony from suspects for use in U.S. criminal cases. This Court should also find that the Fifth Amendment makes Defendant s postarrest, pre- Miranda silence inadmissible in its case-in-chief. Numerous courts have held that this type of silence is inadmissible as substantive proof of guilt because the Miranda warnings themselves do not give rise to the right to remain silent the Fifth Amendment does. Thus, the receipt of Miranda warnings is not a necessary condition for Defendant to claim her privilege against selfincrimination. Further, courts have held that custody in itself triggers the constitutional right to remain silent because law enforcement officers would otherwise be incentivized to delay interrogation in order to create opportunities for an incriminating silence that could be used against defendants in court. Each time that this Court has confronted facts involving postarrest silence, it has determined that such silence is inadmissible in the prosecution s case-in-chief. The government concedes that Defendant was in custody when she remained silent after Agent Amaray launched an accusation against her. Thus, her statement should only be available for impeachment purposes should Defendant choose to waive her right to silence and take the stand in court. Even if this Court determines that the privilege against self-incrimination does not prevent the Government from using Defendant s silence against her in its case-in-chief, 5

15 Defendant s silence should still be excluded as substantive evidence of guilt because it is more prejudicial than it is probative. Given the multitude of reasons that suspects choose to remain silent upon arrest, Defendant s silence in the face of the accusation was ambiguous at best; yet, the prejudice involved in admitting that silence as substantive evidence of guilt, would be substantial. Therefore, the evidence of postarrest, pre-miranda silence in the prosecution s casein-chief would not survive FED. R. EVID. 403 balancing. ARGUMENT I. BECAUSE THE INTERPRETER IS A WITNESS INDEPENDENT OF THE DEFENDANT AND IS UNAVAILABLE TO TESTIFY AT TRIAL, HIS TRANSLATED STATEMENTS MUST BE EXCLUDED TO PROTECT DEFENDANT S SIXTH AMENDMENT RIGHT TO CONFRONTATION. It is undisputed that the interpreter s statements here are testimonial because the Government s purpose in admitting the statements is to show defendant s alleged involvement in aiding and abetting terrorist groups in Remsen. The Government has also admitted that the interpreter will not be available for cross-examination at trial. Therefore, admission of the translated statements would violate the Defendant s Sixth Amendment right to confrontation. a. DEFENDANTS MUST BE GIVEN THE OPPORTUNITY TO CROSS- EXAMINE INTERPRETERS BECAUSE INTERPRETERS ARE INDEPENDENT DECLARANTS. The Sixth Amendment guarantees 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. In Crawford v. Washington, this court held that a defendant in a criminal prosecution has the right to confront witnesses who bear testimony against her. Crawford v. Washington, 541 U.S. 36, 51 (2004). The Confrontation Clause guarantees that testimonial statements will only be admitted if the declarant has been deemed unavailable and the defendant had a prior opportunity 6

16 to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36 (2004). Interpreters are independent witnesses because the statements made by the defendant and the interpreter are not equivalent. Interpretation does not provide for a one-to-one correspondence between words or concepts in different languages. National Association of Judiciary Interpreters and Translators, Frequently Asked Questions about Court and Legal Interpreting and Translating, (last visited Feb. 7, 2018). This Court should find that interpreter Erik Multz s statements are inadmissible in Defendant s case. Multz is unavailable for trial and Defendant has not had a prior opportunity to cross-examine him. Excluding Multz s translated statements would serve the purpose of the Sixth Amendment by avoiding unreliable and potentially inaccurate testimony regarding the translated statements. In addition, Multz s translations are inconsistent with Defendant s statements to law enforcement officers. Therefore, this Court should find Multz s statements inadmissible under the Sixth Amendment andcrawford. Courts have categorically held that interpreters are deemed to be independent of the declarant and therefore, statements made by interpreters and defendants are independent statements. See United States v. Charles, 722 F.3d 1319 (11th Cir. 2013); Taylor v. State, 226 Md. App. 317, 336, (2016). In United States v. Charles, a Customs and Border Protection ( CBP ) officer interrogated the defendant using a Creole interpreter. 722 F.3d 1319, 1321 (11th Cir. 2013). At trial, the officer testified that defendant stated, through the interpreter, that he knew the forms were illegal. Id. The defendant argued that his Confrontation Clause rights were violated because he was unable to cross-examine the interpreter regarding his translations, such as the exact words used when defendant stated that he knew the forms were illegal. Id. The Eleventh Circuit held that interpreters are categorically considered witnesses independent of the 7

17 declarant. The court stated that for purposes of the Confrontation Clause, there are two sets of testimonial statements that were made out-of-court by two different declarants. Id. at While the defendant is the declarant of the Creole statements to the interpreter, the interpreter made the testimonial statements to the CBP officers, and, accordingly, is the declarant of the English-language statements that the CBP officer heard and testified to at trial. Id. Therefore, the CBP officer could only testify to statements made by the interpreter. Id. The court further explained that [r]ather than word for word, then, interpreters render meaning by reproducing the full content of the ideas being expressed. Interpreters do not interpret words; they interpret concepts. Id. (citation omitted). This Court should follow the Eleventh Circuit s approach and hold that interpreters like Multz are independent declarants of the translated statements. The Government instead argues that Defendant has no constitutional right to cross-examine Multz because he acted as a mere language conduit when he interpreted Defendant s statements to the English language. See United States v. Vidacak, 553 F.3d 344 (4th Cir. 2009) (holding that an interpreter was no more than a language conduit under circumstances in which the United States government did not select the interpreter, there was no evidence suggesting bias against the defendant, and the record reflected that the interpreter was highly skilled and reliable ). The Government suggests that translation does not require close scrutiny because it is mechanical. The Government s argument, however, ignores the fact that translation requires independent judgment. See Casen B. Ross, Comment, Clogged Conduits: A Defendant s Right to Confront His Translated Statements, 81 U. CHI. L. REV. 1931, 1960 (2014) ( language translation involves a great deal of discretion, in part because there is not a one-to-one relationship between languages. ). Defendant s case, in particular, demonstrates that translation is not a mechanical process. As explained by Linguistics 8

18 Professor Ana Ruma, Remsi is unlike other Germanic or romance languages, such as English, French, and Italian. (Exhibit 2). Interpreting between Remsi and English is not as exact or as objective as the Government claims. Id. In fact, the interpretation is quite subjective depending on the interpreter s cultural background and personal experiences. Id. See Muneer I. Ahmad, Interpreting Communities: Lawyering Across Language Difference, 54 UCLA L. REV. 999, 1036 (2007) ( [M]uch of the information required to determine the speaker s meaning is not contained in the words of the speaker, but instead is supplied by the listener. ). Therefore, crossexamination of the interpreter is vital in order to understand how the interpreter chose to translate the statements made by defendant into English. i. THE INTRICACIES OF THE REMI LANGUAGE ALSO MANDATE THAT THE GOVERNMENT PROVIDE INTERPRETER MULTZ TO EXPLAIN HIS TRANSLATION. The Remsi language, in particular, is unsuitable for translation into English because the structure of the two languages is vastly different. Unlike the English language, which only has one personal pronoun to refer to the second person, the Remsi language has four. R. at 17. As demonstrated in Defendant s interview with the FBI, the Remsi language did not translate seamlessly into English. Multz varied between the personal pronouns I and we numerous times throughout the interview in instances that drastically altered the meaning behind her words depending on the pronoun used. This is directly relevant to the issue at hand because it is the difference between a statement where the speaker takes personal responsibility for actions and knowledge and a statement describing an institution s act, for which an individual may or may not herself be legally responsible. R at 26. Further, the Remsi alphabet is a distant cousin of Cyrillic and requires special technological modifications, which further indicates that a translation between English and Remsi is by no means mechanical or simple. Id. at 33. 9

19 b. EVEN IF THIS COURT CHOOSES NOT TO ADOPT THE CATEGORICAL RULE THAT INTERPRETERS ARE INDEPENDENT DECLARANTS, THE INTERPRETER WOULD STILL BE DEEMED AN INDEPENDENT DECLARANT BASED ON THE NINTH CIRCUIT S FOUR-PART TEST. The Ninth Circuit decides whether the translated statements are attributed to the defendant or an interpreter on a case-by-case basis. United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991). In determining whether an interpreter is considered an independent declarant, courts have considered the following factors: (1) which party supplied the interpreter; (2) whether the interpreter had any motive to mislead or distort; (3) the interpreter s qualifications and language skills; and (4) whether action taken subsequent to the conversation were consistent with the statements as translated. Id. at 527. The four factors used by the Ninth Circuit weigh in favor of finding that the interpreter was an independent declarant of the translated statements. Here, the Government, specifically the Federal Bureau of Investigation ( FBI ), supplied the interpreter. R at 3. This indicates that the interpreter s interests may have been aligned more with the government. Evidence also suggests that this interpreter had biases and motives to mislead Defendant. Multz left Remsen because of the oppression he faced at the hands of the same separatist group Defendant is accused of funding. R at 30. In the course of translating, Multz would have learned of Defendant s alleged ties to DRB. Because Multz holds biases against the DRB, this may have motivated him to translate Ms. Spector s statements inaccurately. In terms of qualifications and skill, we are told that Multz is a certified translated. However, the record indicates that he had only been working as a translator for two months. R at 27. Given the complexity of the Remsi language and his lack of experience as an official translator, this factor may not weigh in favor of defendant, but it does not affect the strength of 10

20 this argument. The fourth factor does not apply in this case because there were no applicable actions taken. Under the Ninth Circuit test, the interpreter would be considered an independent declarant given that each of the factors weigh in favor of defendant, which would trigger the Confrontation Clause. Therefore, the statement cannot be admitted without an opportunity to cross-examine the interpreter. c. AS A POLICY MATTER, THIS COURT SHOULD ALSO FIND THAT INTERPRETERS ARE INDEPENDENT DECLARANTS OF TRANSLATED STATEMENTS. When an interpreter is translating a particularly rare language or dialect, it is incredibly difficult for either the defendant or the government to know whether the interpretation is done correctly. Therefore, the opportunity to verify accuracy at cross-examination is vital. Further, the purpose of the Confrontation Clause is to protect constitutional rights. Requiring the government to provide the interpreter for cross-examination does not, in any way, favor the defendant. It simply puts an additional check in order to ensure that the statements that are provided to the judge and juries is accurate. Confronting one s accusers allows a defendant to identify a witness s perjurious statements, potential mistakes, and gaps in testimony, all of which the fact finder may consider in making credibility determinations. Casen B. Ross, Comment, Clogged Conduits: A Defendant s Right to Confront His Translated Statements, 81 U. CHI. L. REV. 1931, 1940 (2014). Additionally, allowing the government to introduce evidence of translated statements without cross-examining the interpreter would further burden vulnerable immigrant populations. When balancing the interests of both the defendant and the government, the interest of testifying to accurate testimony should be more important. The number of non-english speaking defendants is at an all-time high and therefore, it is vital that this population is considered when 11

21 determining whether cross-examination of interpreters is required. See Public Accessibility and Service, Director's Annual Report (Administrative Office of the US Courts 2013), online at DirectorAnnualReport/annual-report -2013/the-courts/public-accessibility-and-service.aspx (visited Feb 7, 2018) ( Whether a non-english-speaking defendant has an opportunity to confront his interpreter(s) is an increasingly important issue. In fiscal year 2013, district courts reported that they used interpreters more than 330,000 times to translate 117 languages. ). The Government argues that it may be difficult to track down interpreters because they are often not government employees and may be hired on a per diem basis. But, this also demonstrates an important reason why they should be cross-examined. These interpreters have little to no supervision. If they are so difficult to trace for court purposes, then it is unlikely that they would be checked or disciplined in any way for failing to interpret correctly. Thus, even if it creates a slightly greater burden for the Government, such a burden is worth it because it protects the constitutional rights of a significant number of people. II. DEFENDANT WAS ENTITLED TO A KASTIGAR HEARING TO PRESERVE HER FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION BECAUSE THE REMSEN GOVERNMENT COMPELLED HER TESTIMONY The Fifth Amendment privilege against self-incrimination reflects a complex of our fundamental values and aspirations, and marks an important advance in the development of our liberty. Kastigar v. United States, 406 U.S. 441, 444 (1972). In relevant part, it provides that [n]o person shall be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V. This Court has identified the important values that this privilege reflects. See Murphy v. Waterfront Comm n, 378 U.S. 52, 55 (1964). Among them are: our unwillingness to subject those suspected of crime to the cruel trilemma of selfaccusation, perjury or contempt; our preference for an accusatorial rather than an 12

22 inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load, ; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life, our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent. Id. (citations omitted). These values suggest that the privilege against self-incrimination is crucial for our system of government. Despite our unwillingness to compel witnesses to testify against themselves, there are instances in which their testimony must be compelled. In such circumstances, the Fifth Amendment provides protection against the prosecutor s use of incriminating information derived directly or indirectly from the compelled testimony. United States v. Hubbell, 530 U.S. 27, 38 (2000). The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. Hoffman v. United States, 341 U.S. 479, 486 (1951). Prosecuting authorities may offer defendants use and derivative use immunity in exchange for their compelled testimony. This broad grant of immunity helps to strike a balance between the rights of the individual witness and the needs of the Government, such that both parties are in substantially the same position as if the witness had claimed his privilege in the absence of a grant of immunity. Murphy v. Waterfront Comm n, 378 U.S. 52, 79 (1964). Courts conduct Kastigar hearings in order to ensure that prosecuting authorities in the United States are only proposing to use evidence at trial that is derived from a legitimate source wholly independent of the compelled testimony. 406 U.S. at 460. During such hearings, prosecutors bear the burden of proving that the evidence they 13

23 seek to admit has not been tainted by the witness compelled testimony in violation of the Fifth Amendment. See id. Every circuit court that has examined this issue has determined that evidence derived from testimony compelled by foreign sovereigns is prohibited in U.S. courts. See United States v. Allen, 864 F.3d 63, 101 (2d. Cir. 2017) ( The Fifth Amendment s prohibition on the use of compelled testimony in American criminal proceedings applies even when a foreign sovereign has compelled the testimony. ); R. at 5 ( [W]e hold that the source of compulsion is irrelevant when the United States seeks to introduce at trial evidence derived from compelled statements. ). These courts have recognized that in introducing compelled testimony at trial, prosecutors violate the Fifth Amendment s privilege against self-incrimination. Therefore, this Court should affirm the decision of the Fourteenth Circuit and hold that Defendant was entitled to a Kastigar hearing because: (1) the Fifth Amendment s privilege against self-incrimination applies to evidence that prosecutors seek to admit at trial that is derived from testimony compelled by foreign sovereigns; and (2) even if it does not apply to all testimony compelled by foreign sovereigns, it applies to Defendant s compelled testimony because Remsen is an ally of the United States. a. THE PRIVILEGE AGAINST SELF-INCRIMINATION APPLIES REGARDLESS OF WHETHER A DEFENDANT IS COMPELLED TO TESTIFY BY THE U.S. GOVERNMENT OR A FOREIGN SOVEREIGN The principles behind the privilege against self-incrimination remain consistent when U.S. prosecutors attempt to admit testimony compelled by foreign sovereigns. Defendant still faced the cruel trilemma our criminal justice system sought to avoid, beginning when the Remsen government forced her to choose between self-accusation, perjury, and contempt. See Murphy, 378 U.S. at 55. For this reason, this Court has held that a defendant does not forfeit her 14

24 Fifth Amendment rights when she leaves the United States. In Bram v. United States, this Court held that the defendant s Fifth Amendment rights were violated when the prosecution admitted evidence of an involuntary confession obtained in Halifax. 168 U.S. 532, 542, 565 (1897). While Defendant s situation differs slightly from Bram s since her due process rights were not implicated, Bram indicates that the same clause of the Fifth Amendment commanding that no person shall be compelled in any criminal case to be a witness against himself applies even when prosecutors attempt to admit compelled statements made abroad into U.S. courts. Id. i. THE FIFTH AMENDMENT INJURY TO DEFENDANT OCCURRED AT THE TIME OF TRIAL, NOT AT THE TIME OF COMPULSION Although conduct by law enforcement officials prior to trial may ultimately impair the Fifth Amendment privilege against self-incrimination, a constitutional violation occurs only at trial. United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990). In United States v. Allen, the Second Circuit faced the question of whether testimony given by an individual involuntarily under the legal compulsion of a foreign power may be used against that individual in a criminal case in an American court. 864 F.3d 63, The case involved an international criminal investigation, in which the U.K. compelled the testimony of defendants, then provided it to a third defendant who pled guilty and became a key witness in a U.S. criminal case against the defendants. In reversing the trial court s decision that the Government had satisfied its obligations under Kastigar, the court held that in light of the fact that a Fifth Amendment violation only occurs at trial, it naturally follows that, regardless of the origin i.e., domestic or foreign of a statement, it cannot be admitted at trial in the United States if the statement was compelled. Id. at 82 (citing In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 177, 199 (2d. Cir. 2008). 15

25 Defendant s case is strikingly similar to the facts in Allen. As in Allen, a foreign sovereign compelled the testimony of Defendant, which was later leaked to the public, including the Government s potential witnesses. In both cases, the Government took no part in the compulsion of the defendants testimony, yet still attempted to admit evidence derived from that compulsion in the U.S. criminal case. Relying on the reasoning in Allen, this Court should likewise find that compelled testimony cannot be used to secure a conviction in an American court.... even when the testimony was compelled by a foreign government in full accordance with its own law. Id. ii. THE SAME-SOVEREIGN PRINCIPLE DOES NOT APPLY WHEN THE PROSECUTING AUTHORITY IS BOUND BY THE FIFTH AMENDMENT The Allen court specifically addressed and rejected the Government s argument that the same-sovereign principle should lead courts to find compelled statements admissible in the U.S. prosecution s case. The Government relies on the same-sovereign idea to argue that the Fifth Amendment does not apply in Defendant s case because the U.S. prosecutors who seek to use the compelled statements are not the ones who compelled them. The Government cites Murdock and Feldman, cases that Murphy overruled, for the proposition that U.S. prosecutors can admit testimony compelled by foreign sovereigns because statements compelled by a U.S. State government could be used in a U.S. federal prosecution, and vice versa, before the Fifth Amendment was incorporated to the states. See United States v. Murdock, 284 U.S. 141 (1931) (holding that the federal government could compel testimony from a witness regardless of whether it could be used against the witness in state court); Feldman v. United States, 322 U.S. 487 (1944) (holding that statements compelled by state governments could be used against defendants in federal criminal trials). The Government will likewise point to United States v. 16

26 Balsys to indicate that precedent has indeed adopted that so-called same-sovereign interpretation. 524 U.S. 666, 674, (1998). Balsys, however, involved entirely different circumstances from those of Defendant. In Balsys, this Court determined that the Government could compel a witness testimony even if that testimony could be used against the witness by a foreign sovereign. While this Court relied on the same-sovereign interpretation to conclude that the Government could compel the testimony because the compelling sovereign and the prosecuting sovereign were not the same, what matters is not whether the same-sovereign compelled and used the testimony, but rather whether the sovereign using the testimony is bound by the Fifth Amendment. See Neal Modi, Toward an International Right Against Self-Incrimination: Expanding the Fifth Amendment s Compelled to Foreign Compulsion, 103 VA. L. REV. 961, (2017) (Balsys is also explained by the fact that the statement's purported use would be abroad in a nation that has neither an obligation to follow the Clause nor a duty to recognize any immunity (coextensive with the privilege) agreed to within the United States. ). [W]here, as here, the prosecuting sovereign is bound by the Fifth Amendment, the same-sovereign principle no longer has force because the Fifth Amendment is a personal trial right one violated only at the time of use rather than at the time of compulsion. Allen, 864 F.3d at 86. See also, United States v. Stein, 541 F.3d 130 (2d Cir. 2008) (finding statements inadmissible when an employer coerced defendants into testifying). A second explanation for why the same-sovereign interpretation should not apply in these circumstances relates to the history of interaction between the federal and state governments within the United States at the time the interpretation developed. See Diane Marie Amann, A Whipsaw Cuts Both Ways: The Privilege Against Self-Incrimination in an International Context, 17

27 45 UCLA L. REV. 1201, 1218 (1998) ( Even as police forces developed, crime fighting was largely the domain of the states. Thus, late in the nineteenth century, the Supreme Court scarcely could imagine that one sovereign might prosecute an individual by using testimony compelled by another sovereign within the federation. ) In his concurrence in Murphy, Justice Harlan discussed the idea of cooperative federalism as an important reason to prevent the use of compelled testimony at trial, noting that [i]ncreasing interaction between the State and Federal Governments speaks strongly against permitting federal officials to make prosecutorial use of testimony which a State has compelled when that same testimony could not constitutionally have been compelled by the Federal Government and then used against the witness. Murphy, 378 U.S. at 91 (Harlan, J., concurring). The modern equivalent of cooperative federalism is cooperative internationalism. This idea recognizes that in the 30 years since Murphy, the United States has dramatically increased its level of cooperation with foreign governments to combat crime due to technological advances to the point where cooperation among international prosecutors and police forces may be as great today as among the States (or between the States and the Federal Government) a half century ago. United States v. Balsys, 524 U.S. 666, 714, 717 (1998) (Breyer, J., dissenting). b. POLICY CONSIDERATIONS FAVOR PROTECTING DEFENDANTS COMPELLED STATEMENTS IN ORDER TO PREVENT THE GOVERNMENT FROM WORKING IN TANDEM WITH FOREIGN SOVEREIGNS TO COMPEL TESTIMONY AND USE IT IN DOMESTIC PROSECUTIONS The Allen court correctly held in favor of the most significant policy implications at stake when it refused to entertain a rule that discards the most basic Fifth Amendment right that the Government proposed. 864 F. 3d at 88. Were this Court to accept the Government s argument, 18

28 it would license prosecutors to introduce [d]efendants compelled testimony directly. Id. This rule would free the U.S. Government to coordinate with foreign governments such that foreign governments would compel the suspects testimony and the U.S. Government could use that testimony directly in prosecutions in U.S. courts. It is difficult to imagine circumstances that could do more violence to the privilege against self-incrimination, particularly when the U.S. Government is becoming more involved with prosecuting international crimes. See Allen, 864 F.3d at 89 (discussing the intimate coordination between the United States and foreign authorities, including placement of U.S. prosecutors with Eurojist, INTERPOL, and the FCA) The Government nonetheless argues that Defendant s case falls into a possible policy exception imagined by the Allen court for when a hostile foreign government might hypothetically endeavor to sabotage U.S. prosecutions by immunizing a suspect and publicizing his or her testimony. Allen, 864 F.3d at 88. The Government contends that Allen is distinguishable from Defendant s case because it involved a coordinated effort between the U.S. and U.K. governments, whereas the Government here was unaware that Remsen officials had compelled Defendant s testimony and the video of Defendant s testimony may have been released by rogue actors. R at. 9. Yet, the Remsen government is still an ally of the United States, even if it did not directly coordinate with information about Defendant s compelled testimony. R. at 39. Thus, Remsen is far from the hostile foreign government that the Allen court reserved judgment on, particularly when there is no evidence here that the release of Defendant s testimony was intended to undermine her prosecution in our courts. R. at 6 Further the concerns raised by the Government are far less problematic than would be the loss of protections from the privilege against self-incrimination because such circumstances are so unlikely. See Allen, 864 F.3d at 88 ([S]hould the circumstances in a particular case indicate 19

29 that a foreign defendant had faced no real threat of sanctions by his foreign government for not testifying, then that defendant s testimony might well not be considered involuntary. ) Because a necessary element of compulsory self-incrimination is some kind of compulsion, hostile foreign governments and suspects could not easily work in tandem to evade a suspect s criminal trial in the United States because the suspects testimony would not really be compelled. Hoffa v. United States, 385 U.S. 293, 304 (1966). Finally, even terrorist groups are unlikely to release testimony of a supporter to immunize them from U.S. prosecutions. Such groups would have to weigh the risks of exposing a supporter to physical safety risks of identification with terrorist activity, which may be worse than imprisonment that could result from U.S. prosecution. c. A KASTIGAR HEARING IS REQUIRED TO ENSURE THAT DEFENDANT IS IN THE SAME POSITION AS SHE WOULD BEEN IN HAD THE REMSEN GOVERNMENT NOT COMPELLED HER TO TESTIFY. Defendant s case falls squarely within the circumstances that Kastigar was meant to protect. The Remsen government compelled Defendant to testify, telling her that she could not return to Boerum and could be held in contempt in Remsen upon a refusal to submit to an interrogation. The leak of Defendants compelled statements provided a roadmap to help the U.S. Government s investigation, exposing the prosecution s witnesses to details regarding detailed aspects of her business and donations to Remsi charities. By ensuring that Defendant is granted use and derivative use immunity for her compelled statements, this Court can place Defendant and the Government in substantially the same position as if the witness had claimed [her] privilege. Murphy v. Waterfront Comm n, 378 U.S. 52, 79 (1964). The Government argues that Kastigar places too high a burden on them, such that they will be unable to prosecute Defendant. Yet, Kastigar makes plain that it does not prevent the Government from bringing a prosecution. See 406 U.S. 441 ( The privilege has never been 20

30 construed to mean that one who invokes it cannot subsequently be prosecuted. ). Instead, the Fifth Amendment grants neither pardon nor amnesty.... [It] allow[s] the government to prosecute using evidence from legitimate independent sources. Id. at 461. Moreover, the prosecutorial burden is necessary because it offers protection by assuring that the compelled testimony can in no way lead to the infliction of criminal penalties within U.S. courts. Id. Despite recognizing this heavy burden, this Court has consistently reaffirmed that it is proper. See United States v. Hubbell, 530 U.S. 27, (2000) ( We could not accept [the Government s argument for a different burden of proof] without repudiating the basis for our conclusion in Kastigar that the statutory guarantee of use and derivative-use immunity is as broad as the constitutional privilege itself. This we are not prepared to do. ) III. THE PROSECUTION S USE OF DEFENDANT S POST-ARREST, PRE- MIRANDA SILENCE IN THEIR CASE-IN-CHIEF WOULD VIOLATE THE FIFTH AMENDMENT BY COMPELLING HER TO BE A WITNESS AGAINST HERSELF WHEN SHE WAS CONFRONTED WITH AGENT AMARAY S ACCUSATION. This Court has been zealous to safeguard the values that underlie the privilege against self-incrimination because the privilege is one of the most fundamental rights that a defendant has. Kastigar, 406 U.S. at 445. This is partly driven by a common understanding that this privilege is often a protection to the innocent even if it does, at times, shelter the guilty. Quinn v. United States, 349 U.S. 155, 162 (1955). The Government seeks to admit evidence of Defendant s silence in the face of Agent Amaray s accusation against her as an opposing party statement in its case-in-chief, claiming that her silence was an adoptive statement indicative of guilt. FRE 801(d)(2)(B). Instead, this Court should vindicate suspects Fifth Amendment privilege against self-incrimination and hold that postarrest, pre-miranda silence is protected from use in the prosecution s case-in-chief. See FED. 21