United States v. Osuna , 3 F. App'x 739 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 16 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-5132
(D.C. No. 97-CR-110-C)
FELIX RENDON OSUNA, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BALDOCK , PORFILIO , and ANDERSON , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Defendant Felix Rendon Osuna was convicted following a jury trial of
possession of a machine gun in violation of 18 U.S.C. § 922(o) and possession
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of an unregistered firearm or destructive device in violation of 26 U.S.C. §§ 5845and 5861(d). He appealed his conviction. This court remanded his case for
resentencing with respect to the number of destructive devices possessed by
Mr. Osuna, and for the district court to make findings as to whether the lack of an
interpreter under the Court Interpreters Act, 28 U.S.C. § 1827(d)(1), “inhibited
communication by Osuna with the court and jury, or inhibited Osuna’s
comprehension of the proceedings and assistance to his counsel to such an extent
as to have made the trial fundamentally unfair.” United States v. Osuna , 189 F.3d
1289, 1293 (10th Cir. 1999) (quotation omitted).
I.
Under the Court Interpreters Act, a criminal defendant who relies
principally on a language other than English has a statutory right to a
court-appointed interpreter when his comprehension of the proceedings or ability
to communicate with his counsel would otherwise be impaired. Id. at 1291.
Mr. Osuna, a naturalized citizen, was born in Mexico, but has lived in the United
States since 1975. Mr. Osuna speaks English, spoke English with his lawyer and
during court proceedings, and never requested an interpreter. During the trial
proceedings, however, the court reporter had difficulty understanding many of
Mr. Osuna’s answers, noting some fourteen times in the record that his answers
were “unintelligible.” Id. at 1293, n.3. The trial judge also commented that
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Mr. Osuna was answering many questions very rapidly and was not always
answering the questions asked, causing confusion. At one point during the trial,
the prosecution mentioned to the trial judge that “maybe we ought to have
a Spanish interpreter.” R. Vol. IV, at 408. However, Mr. Osuna’s counsel
declined, stating he thought that “would even be more difficult.” Id. Although
Mr. Osuna did not raise the issue before the trial judge, he claimed on appeal that
the trial court erred in not appointing a Spanish interpreter for him. This court
could not determine from the record whether the use of an interpreter would have
alleviated Mr. Osuna’s difficulties in presenting his testimony, and remanded for
further findings and proceedings. Osuna , 189 F.3d at 1293-94.
On remand, the district court held an evidentiary hearing. The probation
officer who prepared Mr. Osuna’s pre-sentence investigation report testified that
his interview with Mr. Osuna was conducted in English, and that Mr. Osuna
appeared to have full comprehension of the English language. The probation
officer testified that Mr. Osuna was able to describe the circumstances of his life
in English, and that there was never any indication during the interview that
Mr. Osuna was unable to understand his questions. Mr. Osuna testified at the
hearing on his own behalf, this time with an interpreter. He testified he speaks
Spanish at home and often at work and claimed that he had difficulty
understanding the questions posed to him at trial.
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The district court made detailed factual findings that the lack of an
interpreter did not inhibit Mr. Osuna’s comprehension of the trial proceedings or
his ability to present his case. It first noted that Mr. Osuna’s testimony at trial
indicated he regularly speaks English and that there had never been any indication
during the trial that Mr. Osuna spoke primarily a language other than English.
The court explained that the confusion it referred to during the trial and the points
in the trial transcript indicating Mr. Osuna’s answers were unintelligible were
caused not because he spoke primarily a language other than English, but because
of the manner in which he presented himself. Specifically, the court found that
Mr. Osuna often spoke too rapidly to be understood, pointing out that the record
reveals he frequently had to be asked to slow down. In addition, the district court
found that some of the confusion in Mr. Osuna’s testimony was caused because he
failed or refused to give responsive answers to the questions. Further, the district
court noted that defense counsel posed confusing and inarticulate questions to
Mr. Osuna. The district court found that throughout the majority of his testimony,
Mr. Osuna was able to give clear, articulate and precise answers. Finally, the
district court found that Mr. Osuna’s testimony during the evidentiary hearing
lacked credibility, noting that he conducted himself during the hearing entirely
differently than he had at trial. The district court noted that despite Mr. Osuna’s
claim that he did not understand the questions asked of him at trial, he answered
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questions at the hearing before his interpreter translated them. Because the
district court found that nothing inhibited Mr. Osuna’s capacity to understand,
communicate and fully participate in his trial, it denied his request for a new trial.
The district court later resentenced Mr. Osuna in accordance with this court’s
remand order, and that issue is not challenged on appeal.
II.
The appointment of an interpreter under the Court Interpreters Act
is committed to the trial court’s discretion. Osuna , 189 F.3d at 1292 (citing
United States v. Tapia , 631 F.2d 1207, 1209 (5th Cir. 1980)); Valladares v.
United States , 871 F.2d 1564, 1566 (11th Cir. 1989). The underlying issue of
whether a defendant needs an interpreter, however, is a factual determination
made by the trial judge, Osuna , 189 F.3d at 1292, and is reviewed only for clear
error. Gonzalez v. United States , 33 F.3d 1047, 1050 (9th Cir. 1994).
We initially note that the district court did not abuse its discretion in
holding an evidentiary hearing consistent with our remand order. See Osuna ,
189 F.3d at 1294 (remanding for findings “and if necessary, further proceedings
in the trial court to make those findings.”). Mr. Osuna claims that the district
court clearly erred in finding that his claimed language difficulties did not inhibit
his ability to communicate at trial. He contends the district court’s findings are
contrary to statements in this court’s remand order that his difficulties at trial
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were caused by the rapidity of his testimony and his Spanish speaking
background. Contrary to Mr. Osuna’s assertion, this court did not make
a determination in its remand order that he spoke a language primarily other than
English. As we pointed out in our remand order, we were unable to ascertain
from the cold record whether the problems with Mr. Osuna’s testimony would
have been alleviated by the use of an interpreter. Osuna , 189 F.3d at 1293.
The trial court is best positioned to evaluate the need for an interpreter
because it is in direct contact with the defendant, and therefore can best assess
the defendant’s understanding of the English language, the complexity of the
proceeding, and the linguistic context of the testimony. See United States v.
Coronel-Quintana , 752 F.2d 1284, 1291 (8th Cir. 1985); see also Osuna , 189 F.3d
at 1296 (Brorby, J., dissenting) (“the trial judge is in the best position to assess
a defendant’s or witness’ language usage, comfort level and intelligibility.”).
It is precisely for this reason that we remanded this case to the district court to
make the necessary factual findings based on its direct observation of Mr. Osuna
and the trial proceedings. The district court’s findings are not contrary to this
court’s remand order.
Mr. Osuna also contends that the district court’s findings are clearly
erroneous because, while the record shows that he may have understood English,
it does not support a finding that he was able to speak English. We conclude
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from our review of the original record and the record of the proceedings and
testimony presented on remand that the district court’s factual findings that the
lack of an interpreter did not inhibit Mr. Osuna’s ability to communicate with the
court and jury, to comprehend the proceedings, or to assist his counsel, and did
not render his trial fundamentally unfair, are supported by the record.
Accordingly, the judgment of the United States District Court for the
Northern District of Oklahoma is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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