US v. Romo-Chavez, No. 10-10424 (5-23-12)(O'Scannlain with Lasnik, D.J.; Berzon concurring). The 9th allows the government to introduce at trial a defendant's admissions to a Border Patrol agent translated by another agent acting as an interpreter. The 9th holds again that an interpreter is a mere conduit unless a factoring test weighs toward a fact witness. The defendant here came across the border at Nogales, Arizona. Asked why he was crossing, he said that he had to return two shirts to a department store in Scottsdale (several hours away).
Suspicious of the answer, further investigation took place, and a secret compartment was found, filled with meth. The defendant than gave some answers as to where he was going, coming from, and how he got the car. The admissions were given to an officer who did not speak Spanish, but translated by another agent, who said he could speak Spanish. The admissions were challenged at trial. On appeal, the admissions were challenged on confrontation and hearsay grounds. The 9th held that the interpretation did not violate either grounds. The confrontation basis was met because the interpreter was present and could be questioned. He was a conduit. The hearsay test was met because the interpreter was supposedly disinterested (although an agent), had no motive, and had the requisite Spanish skill. The 9th also found no error in not giving a jury instruction for destruction of evidence. Berzon concurred, questioning whether the interpreter could avoid the confrontation and hearsay bar.
She does not buy that the interpreter had the skill. She does not believe the agent was fluent in Spanish. She pointed out that he grew up listening to Spanish, but perhaps not speaking it. His schooling in Spanish was sketchy. He also faltered during some tests conducted in court. The agent had trouble with verb tenses and even with the Miranda rights.
Berzon stresses that the ability to translate could alter the meaning.
However, Berzon would find that any error was harmless given the evidence and defendant's story. Berzon asks though why Homeland Security cannot provide certified interpreters at border crossings, or videotape questioning. Surely the gov't has the resources for this.