Team 12 R THIRTY-THIRD ANNUAL DEAN JEROME PRINCE MEMORIAL EVIDENCE COMPETITION No. 17-2417 IN THE SUPREME COURT OF THE UNITED STATES UNITED STATES OF AMERICA, Petitioner, --against VICTORIA SPECTOR, Respondent. ON WRIT OF CERTIORARI TO THE COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR THE RESPONDENT
TABLE OF CONTENTS QUESTION PRESENTED... IV TABLE OF CITED AUTHORITIES... V OPINIONS BELOW... VI CONSTITUTIONAL PROVISIONS AND STATUTES INCLUDED... VI STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 6 I. THIS COURT SHOULD AFFIRM THE FOURTEENTH CIRCUIT AND HOLD THAT ADMITTING AN INTERPRETER MULTZ S TRANSLATIONS WOULD VIOLATE MS. SPECTOR S SIXTH AMENDMENT RIGHTS.... 6 A. Under Crawford v. Washington, the Admission of Interpreter Multz s Translated Statement Violates Ms. Spector s Sixth Amendment Right to Confrontation Because Interpreter Multz s Statement Is Testimonial, He Is Unavailable to Testify at Trial, and Ms. Spector Has Not Had a Prior Opportunity to Cross-Examine Him.... 7 B. Under United States v. Charles, Ms. Spector s Statement and Interpreter Multz s Translations of that Statement Are Separate Declarations that Requires the Cross- Examination of Interpreter Multz to Satisfy the Confrontation Clause.... 9 C. The Language Conduit Theory Should Be Rejected Because It Is Inconsistent with the Confrontation Clause and this Court s Holding in Crawford.... 13 D. Interpreter Multz s Language Translation Is Analogous to the Testimonial Laboratory Report in Bullcoming v. New Mexico.... 16 II. THIS COURT SHOULD AFFIRM THE FOURTEENTH CIRCUIT AND HOLD THE FIFTH AMENDMENT S PROHIBITION OF SELF-INCRIMINATION INCLUDES COMPELLED STATEMENTS TO FOREIGN SOVEREIGNS, THUS, REQUIRING A KASTIGAR HEARING.... 18 A. The Privilege Against Self-Incrimination Prohibits the Use or Derivative Use of Ms. Spector s Compelled Statements to the RIA.... 18 1. Petitioner Incorrectly Relies on Same Sovereign Jurisprudence to Assert That Statements Obtained by Foreign Governments Are Not Compelled Statements for Fifth Amendment Purposes.... 21 2. RIA Authorities Compelled Ms. Spector s Testimony Acting Under the Authority as a Sovereign and Not as a Private Employer.... 22 B. The Consequences of a Government Witness Tainting the Criminal Proceeding Were Correctly Mitigated Through a Kastigar Hearing... 23 III. THIS COURT SHOULD AFFIRM THE FOURTEENTH CIRCUIT AND HOLD THE FIFTH AMENDMENT BARS MS. SPECTOR S PRE-MIRANDA SILENCE FROM BEING USED AGAINST HER AS EVIDENCE OF HER GUILT.... 26 ii
A. It Is a Violation of Ms. Spector s Fifth Amendment Right Against Self-Incrimination for Petitioner to Comment on Her Pre-Miranda Silence in Its Case-In-Chief.... 28 B. The Fourteenth Circuit Correctly Disregarded the Minority of Federal Circuits Position that Allows the Prosecution to Comment on the Defendant s Silence if It Occurred Before the Defendant Was Required to Be Given His Miranda Warnings. 31 CONCLUSION... 33 iii
QUESTION 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. 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. III. 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. iv
TABLE OF CITED AUTHORITIES CONSTITUTIONAL PROVISIONS U.S. Const. amend. VI... 6 U.S. Const. amend. V... 18 UNITED STATES SUPREME COURT Bram v. United States, 168 U.S. 532 (1897)... 19 Bullcoming v. New Mexico, 564 U.S. 647 (2011)... 16, 17 Chavez v. Martinez, 538 U.S. 760, 767 (2003)... 18, 19 Crawford v. Washington, 541 U.S. 36 (2004)... passim Doyle v. Ohio, 426 U.S. 610 (1976)... 26 Fletcher v. Weir, 455 U.S. 603 (1982)... 27 Garrity v. New Jersey, 385 U.S. 493 (1967)... 23 Griffin v. California, 380 U.S. 609 (1965)... 26 Jenkins v. Anderson, 447 U.S. 2311 (1980)... 26 Kastigar v. United States, 406 U.S. 441 (1972... 18, 21, 24 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)... 16, 17 Miranda v. Arizona, 384 U.S. 436 (1966)... 26, 29 Murphy v. Waterfront Comm'n of N.Y. Harbor, 378 U.S. 52 (1964)... 22 Ohio v. Roberts, 448 U.S. 56 (1980)... 7 Salinas v. Texas, 133 S.Ct. 2174 (2013)... 18, 27 United States v. Balsys, 524 U.S. 666 (1998)... 20, 21, 22, 23 United States v. Hale, 422 U.S. 171 (1975)... 26 United States v. Patane, 542 U.S. 630 (2004)... 18 United States v. Verdugo Urquidez, 494 U.S. 259 (1990)... 19 Ziang Sung Wan v. United States, 266 U.S. 1 (1924)... 21 UNITED STATES COURTS OF APPEALS Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000)... 29 Coppola v. Powell, 878 F.2d 1562 (1st Cir. 1989)... 28, 29 Guam Lee v. United States, 198 F. 596 (7th Cir. 1912)... 13 United States ex rel. Savory v. Lane, 832 F.2d 1011 (7th Cir. 1987)... 28 United States v. Allen, 864 F.3d 63 (2d Cir. 2017)... 19, 20, 23, 24 United States v. Baker, 432 F.3d 1189 (11th Cir. 2005)... 10 United States v. Burson, 952 F.2d 1196 (10th Cir. 1991)... 28 United States v. Charles, 722 F.3d 1319 (11th Cir. 2013)... 9, 10 United States v. Curbelo, 726 F.3d 1260 (11th Cir. 2013)... 14 United States v. Frazier, 408 F.3d 1102 (8th Cir. 2005)... 32 United States v. Lopez, 937 F.2d 716 (2d Cir. 1991)... 13 United States v. Moore, 104 F.3d 377 (D.C. Cir. 1997)... 29, 30 United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991)... 13, 14 United States v. Oplinger, 150 F.3d 1061 (9th Cir. 1998)... 31 United States v. Orm Hieng, 679 F.3d 1131 (9th Cir. 2012)... 14, 17 United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991)... 24 United States v. Rivera, 944 F.2d 1563 (11th Cir. 1991)... 31 United States v. Romo-Chaves, 681 F.3d 955 (9th Cir. 2012)... 13 United States v. Sanchez-Gondinez, 444 F.3d 957 (8th Cir. 2006)... 13 v
United States v. Solomon, 509 F.2d 863 (2d Cir. 1975)... 23 United States v. Stein, 541 F.3d 130 (2d Cir. 2008)... 23 United States v. Vidack, 553 F.3d 344 (4th Cir. 2009)... 13 United States v. Zanabria, 74 F.3d 590 (5th Cir. 1996)... 31 OPINIONS BELOW The opinion of the United States Court of Appeals for the Fourteenth Circuit (No. 16-1120) is located on pages 2-10 of the record. CONSTITUTIONAL PROVISIONS AND STATUTES INCLUDED I. The Fifth Amendment of the United States Constitution provides, No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. Const. amend. V. II. The Sixth Amendment of the United States Constitution provides, In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. U.S. Const. amend. VI. vi
STATEMENT OF THE CASE Respondent, Victoria Spector, serves as the Chief Executive Officer of Bank Plaza in the United States division of the National Bank of Remsen. R. at 1. Ms. Spector is accused of diverting purported charity donation funds to DRB, a Remsen based terrorist group. R. at 2. In March of 2014, the Federal Bureau of Investigation ( FBI ) received an anonymous tip that Bank Plaza was funneling money to the DRB for military services. R. at 13. In response, Special Agent Serg Beda of the FBI began investigating the transactions of Bank Plaza. R. at 3, 12. On June 25, 2014, the FBI interviewed Ms. Spector to determine whether Bank Plaza was accepting funds purportedly donated to legitimate charities and redirecting them to DRB. R. at 3. The FBI provided Erik Multz ( Interpreter Multz ) to translate the interview from Remsi to English because Ms. Spector is more fluent in Remsi than English. Id. Interpreter Multz, a Remsen native, had been working as an interpreter for only two months at the time the interview was conducted. R. at 27. Prior to the interview, Interpreter Multz had left Remsen due to the oppression he faced at the hands of the DRB, the separatist group Ms. Spector is accused of fraudulently funding. R. at 30. Interpreter Multz s qualifications include passing a written and oral certification examination offered by the State of Boerum. Id. There is no audio or video recording of the interview. R. at 3. The only record of the interview is an essentially verbatim memorandum of certain questions posed to Ms. Spector and Interpreter Multz s English translations transcribed by FBI Special Agent Jack Malone. R. at 3, 13. There are fundamental differences in the language structure of Remsi and English. R. at 18. These structural differences create challenges in translating Remsi to English. Id. Rather than translating individual words, an interpreter translating from Remsi must first hear, understand, and internalize what is said in Remsi, and then attempt to find a way to express the same thoughts in English. Id. The Government is unable to 1
locate Interpreter Multz for trial. R. at 3. Ms. Spector has never been given the opportunity to cross-examine Interpreter Multz about his translation of the interview. Id. The investigation lay dormant from February to July of 2015. R at 13. In 2015, Ms. Spector traveled to Remsen and was interrogated by the Remsen National Security Agency (the RIA ) under lawful compulsion while in the presence of counsel. R. at 3. Ms. Spector provided the RIA with detailed information about Bank Plaza s general operations and practices for raising money for charities, particularly those based in Remsen. Id. While not admitting any wrongdoing, Ms. Spector identified a few of the charities the government was investigating, as well as Bank Plaza employees responsible for those accounts. R. at 14. Months after the interrogation took place, a video of the interrogation was leaked to the press and posted to the internet. R. at 3. The DRB took responsibility. R. at 14. The FBI was unaware that Ms. Spector was interrogated by the RIA until the video was leaked. Id. The video was the subject of multiple major media reports in the United States and viewed by millions throughout the world, including FBI agents and witnesses in the present matter. R. at 3, 14. Following the video leak, the FBI reopened its investigation after a recently fired Bank Plaza employee provided the FBI with an internal bank memorandum. R. at 13. This internal memorandum alleged that Ms. Spector may have created a special unit within the bank dedicated to funneling money to one or more terrorist organizations. Id. As the investigation progressed, additional bank employees agreed to assist the FBI. Id. With this assistance, the FBI generated numerous documents for evidence that showed large amounts of money that was diverted through Bank Plaza. Id. Ms. Spector was indicted on April 11, 2016. R. at 3. On April 15, 2016, police executed both an arrest warrant for Ms. Spector and a search warrant for her home. Id. The FBI executed 2
the warrants while Ms. Spector was entertaining a large number of guests. Id. Upon entry, FBI agents announced that they were there to take Ms. Spector into custody and search the home. Id. FBI agents directed Ms. Spector to sit in a chair away from the crowd. Id. Two agents stood surrounding her while others searched her home. Id. While guarding Ms. Spector, FBI Agent Maria Amaray turned to Ms. Spector, looked her directly in the face, and loudly exclaimed, It s disgusting that you would help funnel money to terrorists who kill their own people and who hate the United States and would use that money to attack us. This country has done so much for you. Look at the life you have here. It s just shameful. R. at 3, 15. Special Agent Beda and many of the guests present heard Agent Amaray s statement. R. at 4, 15. In response, Ms. Spector who had not yet received her Miranda warnings looked straight ahead and remained silent. R. at 4. Immediately following the comment, Special Agent Beda walked over to Ms. Spector, advised her of her Miranda rights, and formally placed her under arrest. R. at 15. Procedural Background Respondent, Victoria Spector, is charged with conspiring to provide, and providing, material support to a designated foreign terrorist organization in violation of 18 U.S.C. 2339B. R. at 2. Ms. Spector brought three motions in limine before the District Court regarding the respective three count indictment. Id. The first motion requested the exclusion of the translated statements attributed to [her] on the ground that she would not have the opportunity to crossexamine the interpreter. R. at 2-3. Ms. Spector argued to the District Court that denying her the opportunity to cross examine Interpreter Multz violated the Sixth Amendment and Crawford v. Washington. Id. The second motion requested that a Kastigar hearing be held and the Government establish an independent source for all the evidence it intends to offer against her at trial. R. at 3. 3
Ms. Spector argued that a Kastigar hearing was required due to the excessive media coverage and resulting prejudice stemming from the leaked video interview. Id. In the third motion, Ms. Spector moved to exclude the Government from alluding to her silence after an FBI agent directed an inflammatory statement at her. Ms. Spector argued that the Fifth Amendment precluded the use of her silence as evidence of her guilt because she had not yet received Miranda warnings, even though she was in custody. Id. The District Court granted all three motions. Id. A Kastigar hearing was held where the District Court precluded the Government from offering any evidence it developed after the recording of [Ms. Spector s] compelled testimony was publicly released. Id. The United States brought an interlocutory appeal before the United States Court of Appeals for the Fourteenth Circuit. R. at 2. The Fourteenth Circuit affirmed the District Court s holding in all respects. R. at 7. The Government then petitioned for a writ of certiorari requesting the United States Supreme Court to review the interlocutory decisions of the lower courts. R. at 1. This Court granted the petition for a writ of certiorari on October 16, 2017. SUMMARY OF THE ARGUMENT This Court should affirm the United States Court of Appeals for the Fourteenth Circuit on all three issues presented. First, the Fourteenth Circuit correctly denied the admission of Interpreter Multz's testimonial statements because he will not appear at trial and Ms. Spector has not had a prior opportunity for cross-examination. Ms. Spector's statement and Interpreter Multz's translations of those statements are two separate declarations. Therefore, Interpreter Multz is the declarant of the statements the FBI Agents would testify to. Conversely, the "language conduit" adopted by some circuits was correctly rejected by the Fourteenth Circuit because it is inconsistent 4
with Crawford v. Washington. Furthermore, Interpreter Multz's translations are analogous to the testimonial laboratory report in Bullcoming v. New Mexico and requires cross-examination. Second, the Fourteenth Circuit correctly held that a Kastigar hearing was required because Ms. Spector s testimony to RIA officials was compelled testimony for Fifth Amendment purposes. Ms. Spector s Fifth Amendment protections against self-incrimination extend to her statements given to a foreign sovereign because a violation of the Self-Incrimination Clause does not occur until trial. Therefore, it is the Petitioner, not the Remsen government, who would violate Ms. Spector s Fifth Amendment rights. Compelled statements given to foreign sovereigns are distinguishable from the same sovereign principles that Petitioner urges this Court to follow because Petitioner is bound by the Fifth Amendment. Further, foreign sovereigns who compel testimony under a lawful compulsion statute are acting within their capacity as a sovereign power. Therefore, Ms. Spector s compelled testimony given to the RIA is not synonymous with statements given to private employers. Petitioner concedes that Ms. Spector s statements to the RIA were compelled and that the leaked video of her statements were viewed by FBI agents and witnesses. The leaked video provided the FBI with a roadmap for their investigation and therefore, the Fourteenth Circuit correctly found a Kastigar hearing was required and that Petitioner has a heavy burden to prove that the evidence it intends to use was derived from an independent source. Finally, the Fourteenth Circuit correctly held that Ms. Spector s pre-miranda silence is protected under the Fifth Amendment. Generally, the Fifth Amendment forbids the government from using a defendant s silence against him/her as evidence of guilt. While exceptions have been created, none are applicable to Ms. Spector. Defendants should not be forced to explicitly invoke the right to remain silent when the government compels the silence it wishes to use by failing to 5
advise the defendant of his/her Miranda rights initially. Therefore, the Government should be prohibited from using Ms. Spector s silence in its case-in-chief. ARGUMENT I. THIS COURT SHOULD AFFIRM THE FOURTEENTH CIRCUIT AND HOLD THAT ADMITTING AN INTERPRETER MULTZ S TRANSLATIONS WOULD VIOLATE MS. SPECTOR S SIXTH AMENDMENT RIGHTS. The Sixth Amendment of the Constitution guarantees the accused [i]n all criminal prosecutions... the right to be confronted with the witnesses against him. U.S. Const. amend. VI. In upholding the accused s rights under the Confrontation Clause, a court should not allow the admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 53 (2004). This Court has held that testimonial statements are the primary focus of the Sixth Amendment and interrogations by law enforcement officers fall within this primary objective. Id. at 53-54. In upholding Ms. Spector s Sixth Amendment rights, this Court should affirm the Court of Appeals for the Fourteenth Circuit s holding for four reasons. First, the Court of Appeals correctly held that admission of Interpreter Multz s statement would violate Ms. Spector s Sixth Amendment rights under Crawford v. Washington. Second, the Court of Appeals correctly held that Ms. Spector s statement and Interpreter Multz s translations of that statement are separate declarations and that Interpreter Multz is the declarant of the translation. Third, the Court of Appeals correctly rejected the language conduit theory. Fourth, the Court of Appeals correctly analyzed Interpreter Multz s translation with this Court s guidance in Bullcoming v. New Mexico. 6
A. Under Crawford v. Washington, the Admission of Interpreter Multz s Translated Statement Violates Ms. Spector s Sixth Amendment Right to Confrontation Because Interpreter Multz s Statement Is Testimonial, He Is Unavailable to Testify at Trial, and Ms. Spector Has Not Had a Prior Opportunity to Cross- Examine Him. This case falls squarely within the guidance this Court established in Crawford v. Washington. The admission of Interpreter Multz s English translation of Ms. Spector s Remsi statement would violate Ms. Spector s Sixth Amendment right to confrontation because she has not had the opportunity to cross-examine Interpreter Multz before trial and will not be afford the opportunity to cross-examine him at trial because of his unavailability. In Crawford v. Washington, this Court held the State s use of the defendant s wife s outof-court, tape-recorded statement violated the Confrontation Clause. Crawford, 541 U.S. at 68. During the defendant s trial, the State sought to admit the wife s previous tape-recorded statement made to police, even though the defendant had no opportunity to cross-examine the wife because of the state marital privilege. Id. at 38-39. The defendant was convicted after the trial court allowed the statement to be admitted based on the Ohio v. Roberts holding that allowed the admission of an unavailable witness s statement if the statement bears adequate indicia of reliability. Id. at 40 (quoting Ohio v. Roberts, 448 U.S. 56 (1980)). In its opinion, this Court explicitly overruled Roberts. Roberts determined the admissibility of all hearsay evidence on whether it fit within a firmly rooted hearsay exception or bore particular guarantees of trustworthiness. Id. at 60. The opinion focused on the shortcomings of the reliability/trustworthiness prong. Admitting statements deemed merely as reliable is fundamentally at odds with the right to confrontation. Id. at 61. Justice Scalia hypothesized that the Framers did not intend to leave the protections of the Sixth Amendment to the vagaries of the rules of evidence, much less amorphous notions of reliability. Id. The Confrontation Clause 7
demands that reliability be determined in the specific manner of cross-examination. Id. The Roberts test replaced this constitutionally required method of cross-examination with one that was based solely on a judicial determination of reliability. Id. Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes. Id. at 62. Justice Scalia noted that courts lack the authority to replace the Constitution s specified method for determining reliability with one created by judges, therefore the Roberts test could not stand. Id. at 67. Additionally, the Court prescribed the basic elements of the Confrontation Clause: testimonial, unavailability, and prior opportunity. Id. at 68. In reference to whether a statement is classified as testimonial, Scalia noted that at minimum, testimonial statements include statements made during police interrogations. Id. Here, the Government seeks to admit against Ms. Spector an interpreter s out-of-court statement made prior to trial during a law enforcement investigation. The admission of such a statement would violate Ms. Spector s rights granted to her by the Sixth Amendment Confrontation Clause. The statement is an English translation of Ms. Spector s Remsi statement made to law enforcement during an interview with FBI Agents. R. at 4. It is undisputed that the translated statements attributed to Ms. Spector are testimonial. Id. Additionally, Ms. Spector has not had the opportunity to cross-examine Interpreter Multz before trial. Id. Furthermore, Interpreter Multz will not be available for cross-examination at trial. Id. The FBI is unable to locate Interpreter Multz as there is no trace of him in the United States. R. at 13. The Government s attempt to offer an out-of-court testimonial statement is a prime example of what this Court deemed as a violation of a defendant s right to confrontation in Crawford. Because the interpreter is unavailable and Ms. 8
Spector has not had a prior opportunity to cross-examine him, his testimonial statement cannot be admitted. B. Under United States v. Charles, Ms. Spector s Statement and Interpreter Multz s Translations of that Statement Are Separate Declarations that Requires the Cross-Examination of Interpreter Multz to Satisfy the Confrontation Clause. Where an interpreter translates a foreign language statement into an English statement, the interpreter s translation is a separate declaration from the original declarant and is classified as testimonial. United States v. Charles, 722 F.3d 1319, 1325 (11th Cir. 2013). This separate declaration is subject to the protections of the confrontation clause mandated under Crawford. Id. In determining whether the Confrontation Clause applies, the Court must first determine whether the statement is testimonial and who the declarant of the statement is. Id. at 1322-23. Concerned with witnesses who bear testimony, the Confrontation Clause applies to testimonial statements. Id. at 1322 (citing Crawford, 541 U.S. at 51). Testimony is defined as a solemn declaration or affirmation made for the purpose of establishing or proving some fact. Id. (quoting Crawford, 541 U.S. at 51). Statements are deemed testimonial when the declarant can reasonably expect such a statement to be used for criminal prosecution. Id. at 1322. In reference to who the declarant is, the defendant is the declarant of her out-of-court foreign language statements and the language interpreter is the declarant of his out-of-court English statement. Id. The Court of Appeals correctly compared the present case to an Eleventh Circuit Court of Appeals case, United States v. Charles. In Charles, the defendant sought the reversal of her conviction based on the violation of her Sixth Amendment right to confrontation when the district court allowed the admission of third-party testimony of what an interpreter said to an officer. Charles, 722 F.3d at 1320-21. The court reversed her conviction and held that the defendant had a Sixth Amendment right to confront the interpreter who translated the defendant s Creole 9
statements into English. Id. at 1323. The defendant, Charles, spoke only Creole, no English. Id. at 1320. During a law enforcement interrogation, Charles made several statements in Creole to the officers. Id. Her Creole statements were then translated into English by an interpreter during the interrogation. Id. at 1320-21. At trial, the government did not call the interpreter to testify about the statements Charles made. Id. at 1321. Instead, the government had three of the officers testify to what the defendant said. Id. Charles did not have the opportunity to cross-examine the interpreter regarding what any of Charles purported statements meant or what specific words or phrases Charles actually used because the government failed to call the interpreter to testify. Id. The court applied the United States Supreme Court s holding from Crawford. Id. at 1323 (citing Crawford, 541 U.S. at 54). In making its analysis, the court first looked at whether the translated statement was testimonial. The court held that there is no debate that the statement of the interpreter as to what Charles said are testimonial because statements taken by police officers during an interrogation are definitively testimonial. Id. at 1323 (citing United States v. Baker, 432 F.3d 1189, 1204 (11th Cir. 2005)). Once the court determined the interpreter s statements were testimonial, the court had to determine who the declarant of such statements was. For purpose of the Confrontation Clause, the court held there were two sets of testimonial statement that were made out-of-court by two different declarants. Id. Charles was the declarant of her out-of-court Creole statements and the language interpreter was the declarant of his out-of-court English statement. Id. The court s reasoning was based on the fact that the CBP officer only heard Charles speak in Creole, not English. Id. at 1324. Therefore, it was the interpreter who made the testimonial statements to the CBP officer. Id. Because Charles has the right, under the Confrontation Clause, to confront the declarant, that is the person who made the out-of-court statement, she has the right to confront 10
the Creole language interpreter about the statements to which the CBP officer testified to in court. Id. at 1325. The court went on to discuss in depth why the statements of the interpreter and Charles are not the same or from a single declarant. See id. at 1324. When an interpreter is translating between two different languages, they are not merely interpreting words, instead, they are interpreting concepts. Id. There is no one-to-one correspondence between the words or concepts in different languages. Id. Furthermore, [t]here are many forces, such as differences in dialect and unfamiliarity of colloquial expressions, which operate to frustrate the interpretation of semantic meaning. Id. The end-result of the translation is not a pure repetition of what the speaker said, but much of the meaning of the translated statement is supplied by the listener. Id. at 1325. In the present case, the Court of Appeals correctly applied the Charles analysis and held that there were two sets of testimonial statements that were made out-of-court by two different declarants. First, the Court of Appeals correctly held Interpreter Multz s English-statements were testimonial in nature. It is undisputed that these statements were testimonial. R. at 4. Like Charles statements, these were made during an interview with a law enforcement agency. R. at 13. Second, the Court of Appeals was correct in its holding that Interpreter Multz was the declarant of the translated statements, not Ms. Spector. From the outset, Ms. Spector does not dispute that she was the declarant of her out-of-court Remsi statements. However, Interpreter Multz is the declarant out of his out-of-court English statements. Like in Charles, the FBI agents only heard Ms. Spector speak in Remsi, not English. Thus, when the Agents testify about the statements made during the interview they are actually testifying to what Interpreter Multz said, not Ms. Spector. 11
Similar to the court in Charles, the Court of Appeals correctly noted the difficulties of translation that lends itself to the holding that there were two separate declarants. R. at 4. Translating statements from one language to another is not a mechanical process that yields the same result regardless of who makes the translation. Id. It is very difficult to translate from Remsi to English and from English to Remsi because of the fundamental differences in structure of the two languages. R. at 17-18. The translation of pronouns and the distinction between singular and plural pronouns a distinction at issue here is particularly problematic. R. at 17. The Remsi language has four personal pronouns used to address a second person, while Standard American English has only one (you). R. at 17-18. Consequently, Remsi pronouns are understood only through the context of the conversation. R. at 18. As evidenced by Exhibit 1, Interpreter Multz s English translation of Ms. Spector s Remsi uses inconsistent pronouns during the conversation. The use of we and I are used interchangeably during the conversation. R. at 18-20. Ms. Spector is reported to have said, I [Ms. Spector] had to give OK to all donations being issued to the various charities with bank accounts. However, when Agent Malone followed up by asking whether Ms. Spector oversaw which charities the bank worked with and approved all charitable contributions the bank made, Ms. Spector is reported as having replied, Yes, we did. R. at 19. Without the opportunity to crossexamine Interpreter Multz, Ms. Spector will be unable to inquire how he chose to translate one statement by using the pronoun I and another statement about the exact same topic by using the pronoun we. The difference between I and we can be the difference between a statement that is incriminating and one that is not. R. at 26. This is but one example of the problems in translation that make it vital for Ms. Spector to be afforded her right to confront Interpreter Multz at trial before her statements be admitted. Id. 12
Furthermore, interpreters must exercise independent judgment which may divert from what the original speaker, Ms. Spector, actually intended to convey. R. at 4. Rather than translating individual words, an interpreter translating from Remsi must first hear, understand, and internalize what was said in Remsi, and then attempt to find a way to express the same thought in English. R. at 18. Remsi has several idioms and homophones that requires drawing subjective inferences about the precise meaning intended by the speaker. Id. Interpreter Multz s understanding of a particular idiom or homophone is inevitably shaped by his personal experiences and cultural background, which could be entirely different from what Ms. Spector meant to express. Id. C. The Language Conduit Theory Should Be Rejected Because It Is Inconsistent with the Confrontation Clause and this Court s Holding in Crawford. Various circuits have held that the defendant is the declarant when an interpreter translates the defendant s statement from one language to another. See Guam Lee v. United States, 198 F. 596 (7th Cir. 1912); United States v. Lopez, 937 F.2d 716 (2d Cir. 1991). Even after this Court s holding in Crawford, these circuits continued to hold that an interpreter is a mere language conduit and not an independent declarant. See United States v. Romo-Chaves, 681 F.3d 955 (9th Cir. 2012); United States v. Vidack, 553 F.3d 344 (4th Cir. 2009); United States v. Sanchez- Gondinez, 444 F.3d 957 (8th Cir. 2006). For example, the Ninth Circuit developed a four-part test for determining whether statements should be considered those of the initial speaker or of the interpreter. See United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991). In Nazemian, the court noted that courts must first apply a four-part test to determine whether the interpreter is considered a declarant, rather than a language conduit. Id. at 527. This test requires the court to look at (1) which party supplied the interpreter, (2) whether the interpreter had any motives to mislead or distort, (3) the interpreter s qualifications and language skill, and (4) whether actions taken subsequent to the conversation 13
were consistent with the statements as translated. Id. If after analyzing these four factors, the court holds that the statements must be attributed to the interpreter, it would ask whether the statement was testimonial. United States v. Orm Hieng, 679 F.3d 1131, 1140 (9th Cir. 2012). If deemed as testimonial, the statement could not be admitted without the opportunity for the defendant to confront the interpreter. Id. However, if the court determined that the statement could be attributed to the original speaker (defendant), the court would not engage in the Crawford analysis because the defendant could not complain that he was denied the opportunity to confront himself. Id. The circuits who use the language conduit theory recognize the tension between their holdings and this Court s in Crawford. Id. Yet, they still apply the Nazemian holding because they view it as not clearly inconsistent with the Crawford line of cases. Id. at 1141. The Ninth Circuit acknowledged the possibility that Crawford might be read as essentially divorcing Sixth Amendment analysis from the law of evidence, but the court went on to discuss that that was not the case because the Supreme Court continued to use evidence vocabulary in its Crawford analysis. Id. at 1140. Other circuits have followed the Supreme Court s separation of the rules of evidence and the Confrontation Clause. See United States v. Curbelo, 726 F.3d 1260, 1273 n.9 (11th Cir. 2013) ( Although we have cited the language conduit rule with approval in the hearsay context we recently held that it does not apply in the Confrontation Clause context. ). In the present case, Petitioner argues that this Court should treat the interpreter s out-ofcourt statements as if they are the defendant s own and thus, consider the defendant as the declarant of those statements for purposes of the Confrontation Clause. However, the Court of Appeals correctly rejected this argument and the adoption of the language conduit theory. R. at 4. As the Ninth Circuit even acknowledged that its holding in Nazemian is inconsistent with Crawford, though labeling it is not clearly irreconcilable. Orm Hieng, 679 F.3d at 1140-41. The Nazemian 14
four-part test is analogous to the Roberts two-part test that was overruled in Crawford. The Nazemian test is essentially a mere judicial determination of reliability. See Crawford, 541 U.S. at 62. This Court held such practice as running afoul of the Sixth Amendment protections, Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. Id. The Nazemian four-part test consists of factors the defendant should have the opportunity to confront the interpreter about during his or her cross-examination. In the alternative, if this Court would hold that the Nazemian analysis is consistent with its holding in Crawford and apply the four-part test to the present case, the statements would still be attributed to Interpreter Multz and not Ms. Spector, therefore, implicating the Confrontation Clause. First, the government supplied the interpreter. The FBI provided the interpreter, Interpreter Multz, who translated the interview from Remsi to English. R. at 3. Second, Interpreter Multz had a possible motive to mislead or distort his translations. Interpreter Multz had recently left Remsen due to the oppression he faced at the hands of DRB, the same separatist group Ms. Spector is accused of conspiring with. R. at 30. Third, Interpreter Multz s qualification and fluency of Remsi is questionable. R. at 30. While Interpreter Multz passed a written and oral certification examinations, he does not possess a language degree in Remsi. Id. There is no video or audio recording for a third-party interpreter to review and approve as accurate, only a transcript of the English statements. R. at 19-20. Additionally, Interpreter Multz was only employed at the translation agency for two months, thus he could be an inexperienced interpreter. R. at 13. Fourth, there are several subsequent actions to the conversation that are inconsistent with the statements as translated. For example, Exhibit 1, an excerpt of the statement attributed to Ms. Spector by the Government, reveals that something has been lost in translation. R. at 18. The pronouns are inconsistent with one another; in one sentence Ms. Spector uses the pronoun we, but moments 15
later uses I in reference to the same question. R. at 19. The fact that Interpreter Multz switched the pronouns back and forth even midsentence without asking Ms. Spector to clarify, further supports the position that something was amiss here. R. at 26. All of these factors weigh against attributing Interpreter Multz s translations to Ms. Spector. Based on the Nazemian four-part test, Interpreter Multz is no mere conduit; he is the sole declarant. His statements are clearly testimonial as the statements were made in the course of an ongoing investigation interview. Because Interpreter Multz s statements are testimonial, they cannot be admitted without the opportunity for Ms. Spector to cross-examine him. As Interpreter Multz s is unavailable to testify and the government is unable to locate him, his translation of Ms. Spector s statements is inadmissible under the Confrontation Clause. D. Interpreter Multz s Language Translation Is Analogous to the Testimonial Laboratory Report in Bullcoming v. New Mexico. Crawford s requirements under the Confrontation Clause applies to all out-of-court testimonial statements. Crawford, 541 U.S. at 53. This Court has previously held that such statements include technical laboratory reports. Bullcoming v. New Mexico, 564 U.S. 647, 652 (2011). Thus, when the Government seeks to admit a laboratory analyst s forensic report or an interpreter s language translation, the Sixth Amendment requires the unavailability of the creator of the report/translation at trial and the prior opportunity to cross-examine him. See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (holding a forensic laboratory report stating that a suspect substance was cocaine as testimonial for purposes of the Sixth Amendment Confrontation Clause). In Bullcoming v. New Mexico, this Court applied the Crawford Confrontation requirements to a laboratory analyst s testimonial regarding the results of a blood alcohol test. Bullcoming, 564 U.S. at 652. This Court concluded that the result of the defendant s blood alcohol test could not be admitted unless the laboratory analyst who conducted the test was available for cross-examination 16
at trial. Id. Like in Crawford, this Court shut down the Government s argument that the laboratory test s reliability overcame the Sixth Amendment s requirements. Id. at 661. This Court refused to give credence to the analyst s testimonial report based on the notion that the report was based on machine-produced data. Id. Though the report does contain scientific-tested data, the analyst of that data needs to be proven reliable via cross-examination, even if they possess the scientific acumen of Mm. Curie and the veracity of Mother Teresa. Id. at 661 (citing Melendez-Diaz, 557 U.S. at 319). This Court emphasized that even a laboratory analyst who merely read results generated by a machine could be subject to lapses in judgment or could lie. Id. at 661-62. In the present case, the Confrontation Clause requires the interpreter be available for crossexamination to determine the reliability of the translated statement. If the Confrontation Clause requires a laboratory analyst who prepared a forensic report of a blood alcohol test to testify at trial, it surely affords Ms. Spector the opportunity to cross-examine the interpreter who translated her Remsi statement as translation from one language to another is less of a science than conducting laboratory tests, and so much more subject to error and dispute. Orm Hieng, 679 F.3d at 1149 (Berzon, J., concurring) ( Without the ability to confront the person who conducted the translation a party cannot test the accuracy of the translation in the manner in which the Confrontation Clause contemplates. ). A language translation has more subjective, technical, yet flexible components to it than a forensic report does. Interpreting requires judgment which forces the interpreter to make subjective choices that impacts the final outcome of the translation. R. at 28. Similar to Bullcoming, where the analyst was required to testify in order to explain his testing process, Interpreter Multz should be required to testify in order to explain his translation process. There are several external factors that might influence a translation, such as cultural, socioeconomic, regional background, or personal biases. Id. Without an opportunity to cross 17
examine Interpreter Multz, Ms. Spector cannot expose any lapse in judgment of Interpreter Multz, his biases or lies, nor his reasoning for choosing particular words or phrase. II. THIS COURT SHOULD AFFIRM THE FOURTEENTH CIRCUIT AND HOLD THE FIFTH AMENDMENT S PROHIBITION OF SELF-INCRIMINATION INCLUDES COMPELLED STATEMENTS TO FOREIGN SOVEREIGNS, THUS, REQUIRING A KASTIGAR HEARING. The Fifth Amendment s privilege against self-incrimination provides that No person... shall be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V. The core protection afforded by the Self-Incrimination Clause is a prohibition on compelling a criminal defendant to testify against himself at trial. United States v. Patane, 542 U.S. 630, 637 (2004). This Court has held, [I]t is not until [a statement s] use in a criminal case that a violation of the Self-Incrimination Clause occurs. Chavez v. Martinez, 538 U.S. 760, 767 (2003). Selfincrimination protections bar the use of compelled testimony, as well as evidence derived directly or indirectly therefore. Kastigar v. United States, 406 U.S. 441, 445 (1972). This Court should affirm the United States Court of Appeals for the Fourteenth Circuit because Ms. Spector has a constitutional privilege against self-incrimination, including statements compelled by a foreign sovereign. Thus, Ms. Spector s constitutional protections against selfincrimination demanded a Kastigar hearing in order to mitigate the possibility of tainted evidence being used at trial. A. The Privilege Against Self-Incrimination Prohibits the Use or Derivative Use of Ms. Spector s Compelled Statements to the RIA. The applicability of the Self-Incrimination Clause to the extraterritorial issue before this Court turns on a textual analysis of the Fifth Amendment compared to other constitutional exclusionary rules. This Court has held that whatever may occur prior to trial, the right not to testify against oneself at trial is absolute. Salinas v. Texas, 133 S.Ct. 2174, 2179 (2013). This 18
constitutional right is absolute because the constitutional violation occurs only at trial, even if conduct by law enforcement officials prior to trial may ultimately impair that right. See United States v. Verdugo Urquidez, 494 U.S. 259, 264 (1990). For this reason, the Self-Incrimination Clause is distinguishable from other exclusionary rule jurisprudence, such as those attached to unreasonable searches and seizures and the otherwise-valid confessions given without Miranda warnings. United States v. Allen, 864 F.3d 63, 81 (2d Cir. 2017). This textual distinction is imperative to the present issue because other exclusionary rules apply whether or not the tainted evidence is sought to be used in a criminal trial. Verdugo Urquidez, 494 U.S. at 264 ( A violation of the [Fourth] Amendment is fully accomplished at the time of the unreasonable government intrusion. ). Therefore, this Court refuses to apply those rules to cases turning on the Self-Incrimination Clause because the constitutional violation can only occur at trial. Id. It naturally follows that a compelled statement cannot be admitted at trial in the United States, regardless of whether the statement was taken by United States authorities or foreign sovereign authorities. Consequently, the Fifth Amendment applies to the use of statements obtained by foreign officials because a violation occurs not when the statements are elicited, but when they are used in a prosecution by the United States government. See Chavez, 538 U.S. at 767; see also, Bram v. United States, 168 U.S. 532 (1897) ( [T]he Fifth Amendment precludes use of an involuntary statement coerced by foreign officials. ). 1 The deterrent effect designed in other exclusionary rules have no effect upon foreign officers. Id. In sum, the Self-Incrimination Clause s textual exclusion of the use of compelled testimony directly addresses what happens in American courtrooms, in 1 Statements regarded as compelled or involuntary are often used interchangeably and treated synonymously in the Fifth Amendment context. See, e.g., Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984). 19
contrast to the exclusionary rules that are crafted as remedies to deter unconstitutional actions by officers in the field. Allen, 864 F.3d 63 at 82. The Second Circuit, in United States v. Allen, concluded that 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. See id. In Allen, the defendants were charged with conspiracy and wire fraud for submitting incorrect interest rates. Id. at 75. The defendants were interrogated by government officials from the United Kingdom prior to their indictment from the United States. Id. The defendants were interrogated under the authority of a United Kingdom lawful compulsion statute. Id. Although United Kingdom officials granted the defendants immunity from the compelled statements, they did not receive broader immunity under United States law, even though both countries were investigating the case in tandem. Id. The United States key witness at trial testified against the defendants after he had carefully reviewed the defendants statements given to United Kingdom investigators. Id. at 77. The Second Circuit reversed the defendants convictions and reasoned that the Self-Incrimination Clause flatly prohibits the use of compelled testimony... to secure a conviction in an American court. Id. at 82. The court noted that this is so even when the testimony was compelled by a foreign government in full accordance with its own law. Id. Here, Ms. Spector s statement to the RIA invokes Fifth Amendment protections against self-incrimination. From a starting point, this Court should note that Petitioner does not dispute that Ms. Spector s statements to the RIA was under a compulsion statute of the Remsen government. R. at 3. In fact, the Remsen government told Ms. Spector that she wouldn t be able to return to Boerum and would be held in contempt in Remsen if she refused to submit to an interrogation. R. at 31; see United States v. Balsys, 524 U.S. 666, 690 (1998). ( The Self- 20
Incrimination Clause concerns the desire to avoid the cruel trilemma of self-accusation, perjury or contempt. ). On its face, Ms. Spector s statements to the RIA were compelled and, therefore, are involuntary testimony in a United States courtroom. Of importance, this Court has never made a distinction between compelled testimony given under misconduct or under lawful considerations. See Ziang Sung Wan v. United States, 266 U.S. 1, 14-15 (1924) ( [A] confession obtained by compulsion must be excluded whatever may have been the character of the compulsion. ). Like in Allen, Ms. Spector was compelled to give testimony to a foreign sovereign under threat of contempt. R. at 3. The Fourteenth Circuit correctly noted that a Fifth Amendment injury to a defendant occurs not at the time of compulsion, but at trial. R. at 5. Therefore, it is the United States government, not the Remsen government, that would violate Ms. Spector s absolute constitutional right against self-incrimination. Ms. Spector is thus afforded all protections of the Fifth Amendment notwithstanding the fact that a foreign sovereign compelled her to give a statement. See Kastigar, 406 U.S. at 445 ( This Court has been zealous to safeguard the values which underlie the privilege against self-incrimination.). 1. Petitioner Incorrectly Relies on Same Sovereign Jurisprudence to Assert That Statements Obtained by Foreign Governments Are Not Compelled Statements for Fifth Amendment Purposes. Petitioner misplaces Fifth Amendment jurisprudence in urging this Court to hold that the Fifth Amendment is inapplicable to a defendant s compelled statements to foreign officials. Petitioner s primary reliance upon this Court s decision in United States v. Balsys is inappropriate. Balsys, 524 U.S. at 690. In Balsys, the defendant refused to respond to questions from United States investigators regarding his activities in World War II out of fear that his responses would expose him to prosecution in foreign jurisdictions. Id. at 670. This Court declined to extend the Fifth Amendment's protection against self-incrimination to cases where the only threat of 21