United States v. Manoucheka Charles , 722 F.3d 1319 ( 2013 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14080
________________________
D.C. Docket No. 1:12-cr-20425-FAM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MANOUCHEKA CHARLES,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 25, 2013)
Before BARKETT and MARCUS, Circuit Judges, and CONWAY, * District Judge.
BARKETT, Circuit Judge:
*
Honorable Anne C. Conway, Chief Judge, United States District Court for the Middle
District of Florida, sitting by designation.
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Manoucheka Charles, a Haitian national, appeals from her conviction for
knowingly using a fraudulently altered travel document in violation of 18 U.S.C. §
1546(a). Charles, who speaks Creole and does not speak English, argues that her
conviction must be reversed because the only evidence to support the charge that
she knowingly used a fraudulently altered travel document was the third-party
testimony of a Customs and Border Protection (“CBP”) officer as to the out-of-
court statements made by an interpreter who translated Charles’s Creole language
statements into English during the CBP officer’s interrogation of Charles. 1 On
appeal, Charles argues that the erroneous admission of the CBP officer’s trial
testimony of what the interpreter said to him violated her Sixth Amendment
Confrontation Clause rights.
I. Factual and Procedural Background
Charles arrived at the Miami International Airport from Haiti and presented
her travel documents to a CBP officer. These included her Haitian passport, a
customs declaration form, and Form I-512, which provides authorization for
persons to travel in and out of the United States while they are in the process of
gaining legal immigration status. The first CBP officer, who did not speak Creole,
referred Charles to a second CBP officer, who checked the I-512 document against
1
The only disputed issue at trial was whether Charles knew the I-512 was fraudulent.
The only evidence of Charles’s knowledge was the testimony of the CBP officer as to what the
interpreter told him Charles said during the interrogation.
2
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a computer database and discovered that the name and date-of-birth associated
with the I-512 in the database was not the same as the one on the I-512 that Charles
presented. Charles was then sent to secondary inspection, where she was
interrogated by a third CBP officer, who also did not speak Creole, but who used
an over-the-phone interpreter service under contract with the Department of
Homeland Security to allow him to conduct his interrogation. The interpreter on
the phone translated from English to Creole the CBP officer’s questions for
Charles as well as translated from Creole to English Charles’s responses to the
CBP officer’s questions.
At trial, the government did not call the interpreter to testify. Instead, the
government presented the testimony of the three CBP officers to establish what
happened at the airport. The third CBP officer, who conducted the interrogation
through the interpreter, told the jury what the interpreter told him Charles had said.
He testified that the interpreter told him that Charles stated that she did not receive
the I-512 from United States authorities, but that she received the document about
a month after she provided her photograph and passport to a man who offered to
help her and that she did not pay anything for the document. The officer also
testified that when she was asked, through the interpreter, where she was planning
to live in the United States, she provided a relative’s address in Key West. When
she was asked, through the interpreter, why the address on the I-512 was different
3
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than the Key West address, she said “the form was already given to her
completed.” He then testified that Charles also stated, through the interpreter, that
“when she sat down [on the plane], she started reading the document and she
noticed that the document was illegal because it didn’t fit her profile.”2
Because the government did not call the interpreter as a witness, Charles did
not have an opportunity to cross-examine the interpreter regarding what any of
Charles’s purported statements meant or what specific words or phrases Charles
actually used. For example, when the interpreter supposedly said that Charles told
her the document “didn’t fit her profile,” defense counsel had no opportunity to
cross-examine the interpreter regarding whether Charles used those actual words or
different words which the interpreter characterized as not “fit[ting] her profile.”
Likewise, when the interpreter said Charles knew the form was “illegal,” there
could be no cross-examination about what actual words Charles used and whether
the words she used in Creole could have had other meanings than “illegal.”
II. Discussion
On appeal, Charles argues that her Confrontation Clause rights were violated
by the admission of the CBP officer’s in-court testimony as to the interpreter’s
English language out-of-court statements, without the opportunity to cross examine
2
The government also read into the record the parties’ stipulation that the interpreter was
a Creole interpreter, who speaks fluent English and Creole, and had interpreted Charles’s
interview with the CBP officer.
4
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the interpreter. Our review of this argument is for plain error because Charles did
not object during her trial to the CBP officer’s testimony as a violation of her rights
under the Confrontation Clause. Under plain error review, we cannot correct an
error that was not raised at trial unless: (1) there was error; (2) that was plain; (3)
that affected the defendant’s substantial rights; and (4) we determine that it that
seriously affected the fairness, integrity, or public reputation of the judicial
proceedings. See United States v. Arbolaez, 450 F.3d 1283, 1291 (11th Cir. 2006)
(applying plain error review to a Confrontation Clause violation raised for the first
time on appeal). Accordingly, we first must determine whether it was erroneous
under the Confrontation Clause to admit the CBP’s officer’s testimony. See
United States v. Olano, 507 U.S. 725, 732 (1993) (“The first limitation on
appellate authority . . . is that there indeed be an ‘error.’”).
The Confrontation Clause to the Sixth Amendment provides 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,
541 U.S. 36, 59 (2004), the Supreme Court explained that under the Confrontation
Clause, “[t]estimonial statements of witnesses absent from trial have been admitted
only where the declarant is unavailable, and only where the defendant has had a
prior opportunity to cross-examine” the declarant. (Emphases added). In
5
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reiterating the genesis of this understanding of the Confrontation Clause, the Court
made several critical observations about the long-standing meaning of this right.
First, the Court in Crawford explained that the Confrontation Clause is
concerned with witnesses against the defendant, “in other words, those who ‘bear
testimony.’” 541 U.S. at 51 (quoting 2 N. Webster, An American Dictionary of the
English Language (1828)). And testimony itself has a particular meaning, in that it
is “a solemn declaration or affirmation made for the purpose of establishing or
proving some fact.” Id. Testimonial statements are ones “that declarants would
reasonably expect to be used prosecutorially[.]” Id. The Confrontation Clause,
therefore, “reflects an especially acute concern with a specific type of out-of-court
statement.” Id. That concern is with testimonial statements made out of court by a
declarant whom the defendant has a constitutional right to confront through cross-
examination.3
Next, the Court explained that “the Framers would not have allowed
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.” Id. at 53–54; see also United States v. Baker, 432 F.3d 1189,
1203 (11th Cir. 2005) (same). Unavailability of the declarant and the prior
3
The Court distinguished testimonial statements, which, it explained “interrogations by
law enforcement officers fall squarely within,” id. at 53, from, for example, a “casual remark to
an acquaintance,” id. at 51.
6
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opportunity to cross-examine the declarant are limitations required to satisfy the
Sixth Amendment. Id. at 54 (noting that the constitution does not suggest
exceptions to the confrontation requirement). The Court held that the prior
opportunity for cross-examination was not merely sufficient, but rather
“dispositive” for the admissibility of testimonial statements. Crawford, 541 U.S. at
55–56.
Finally, in clarifying the appropriate test under the Confrontation Clause for
admitting testimonial out-of-court statements of a declarant, the Court in Crawford
overruled the test that it previously laid out in Ohio v. Roberts, 448 U.S. 56
(1980).4 The Court noted that in Roberts, the introduction of all out-of-court
statements was permitted so long as they fell under a “firmly rooted hearsay
exception” or bore “particularized guarantees of trustworthiness.” Crawford, 541
U.S. at 60. In Crawford the Court rejected this test as it applies to testimonial out-
of-court statements as too narrow, permitting the admission of such statements
“upon a mere finding of reliability.” Id. Indeed, the Court explained that “[w]here
testimonial statements are involved, we do not think the Framers meant to leave
the Sixth Amendment’s protection to the vagaries of the rules of evidence, much
less to amorphous notions of reliability.” Id. at 61. “Leaving the regulation of out-
4
The Court limited its holding in Crawford to testimonial statements and declined to
definitely resolve whether the Confrontation Clause applies to non-testimonial out-of-court
statements. Id. at 61.
7
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of-court statements to the law of evidence would render the Confrontation Clause
powerless to prevent even the most flagrant inquisitorial practices.” Id. at 51;
see also id. at 50–51 (“[W]e once again reject the view that the Confrontation
Clause applies of its own force only to in-court testimony, and that its application
to out-of-court statements introduced at trial depends upon the law of Evidence for
the time being.”) (quotation marks omitted). Instead, the constitution commands
that “reliability [of testimonial statements] be assessed in a particular manner: by
testing in the crucible of cross-examination.” Id. at 61.
Under Crawford’s framework, as explained below, we find that Charles has
a Sixth Amendment right to confront the interpreter, who is the declarant of the
out-of-court testimonial statements that the government sought to admit through
the testimony of the CBP officer.
As an initial matter, there is no debate that the statements of the interpreter
as to what Charles said are “testimonial.” The CBP officer conducted the
interrogation of Charles while she was detained at the airport and was suspected of
knowingly using a fraudulent document to gain entry to the United States. We
have said that “[s]tatements taken by police officers in the course of interrogations
are definitively testimonial” and thus fall within the protection afforded by the
Confrontation Clause. Baker, 432 F.3d at 1204 (quotation marks and emphasis
omitted); see also Crawford, 541 U.S. at 53 n.4. This includes not only “technical
8
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legal” interrogations but also “witness statements given to an investigating police
officer.” Arbolaez, 450 F.3d at 1291 (quotation marks omitted). Moreover, the
government sought admission of the interpreter’s statements of what Charles said
to prove the truth of those statements. See Crawford, 541 U.S. at 59 n.9 (“The
Clause also does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.”). Thus, the interpreter’s English
language statements of what Charles told her in Creole are testimonial and subject
to Crawford’s mandate governing the Confrontation Clause.
Next, although the CBP officer testified as if the out-of-court statements
were made by Charles directly to him in English, they were not. Instead, his
questioning of Charles was accomplished in two different languages, requiring the
services of a language interpreter. Thus, for purposes of the Confrontation Clause,
there are two sets of testimonial statements that were made out-of-court by two
different declarants. Charles is the declarant of her out-of-court Creole language
statements and the language interpreter is the declarant of her out-of-court English
language statements.
The only possible out-of-court statements to which the CBP officer could
testify to in court are the English language statements of the interpreter. When the
CBP officer asked questions in English, the interpreter orally translated them into
Creole for Charles. Charles then spoke to the interpreter in Creole, who in turn
9
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orally translated Charles’s statements from Creole into English for the CBP officer.
The CBP officer only heard Charles speak in Creole and never heard any
statements from Charles in English. Thus, during the trial when the CBP officer
testified as though the statements were made by Charles in English, he was
actually testifying to the out-of-court statements of the interpreter. In other words,
the interpreter made the testimonial statements to the CBP officer, and,
accordingly, is the declarant of the English-language statements that the CBP
officer heard and testified to at trial.
Moreover, given the nature of language interpretation, the statements of the
language interpreter and Charles are not one and the same. Interpretation is the
oral form of transferring meaning from one language, known as the “source”
language, into another language, known as the “target” language. See Cultural
Issues in Criminal Defense 153 (Linda Friedman Ramirez ed., 3d ed. 2010); see
also Webster’s Third New International Dictionary Unabridged 1182 (1993)
(defining an interpreter as “one that translates; esp: a person who translates orally
for parties conversing in different tongues”). Language interpretation, however,
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, http://www.najit.org/certification/faq.php#techniques (last visited June
10
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17, 2013). “Rather 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. Language interpreters typically
“[c]onvert concepts in the source language to equivalent concepts in the target
language.” U.S. Dep’t of Labor, Bureau of Labor Statistics, Occupational Outlook
Handbook (2012–13 ed.), available at http://www.bls.gov/ooh/media-and-
communication/interpreters-and-translators.htm#tab-2.
As one scholar has noted, there are many forces, such as differences in
dialect and unfamiliarity of colloquial expressions, which “operate to frustrate the
interpretation of semantic meaning.” Muneer I. Ahmad, Interpreting
Communities: Lawyering Across Language Difference, 54 UCLA L. Rev. 999,
1035 (2007). Not only does a language interpreter face obstacles in trying to
convey the semantic meaning of a speaker’s words but language interpretation
necessarily requires the interpreter also to understand “the contextual, pragmatic
meaning of specific language” so that “much 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.” Id. at 1036.
Accordingly, because Charles has the right, under the Confrontation Clause,
to confront the “declarant,” that is the person who made the out-of-court statement,
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she has the right to confront the Creole language interpreter about the statements to
which the CBP officer testified to in court.
The government, however, relying on our circuit’s decision in United States
v. Alvarez, 755 F.2d 830, 860 (11th Cir. 1985), argues that we should treat the
interpreter’s out-of-court statements as if they are the defendant’s own and thus,
consider Charles to be the declarant of those statements for purposes of the
Confrontation Clause analysis. Contrary to the government’s assertion, Alvarez
and the Second Circuit case which it essentially adopted, United States v. Da Silva,
725 F.2d 828 (2d Cir. 1983), do not hold that a foreign-language speaking
defendant is the “declarant” of the English-language statements of an interpreter.
In Alvarez, a case in which the Confrontation Clause was never raised or
addressed, we held that a witness’s in-court testimony of an interpreter’s out-of-
court oral translations of the defendant’s statements are admissible as non-hearsay
under Federal Rules of Evidence 801(d)(2)(C) or (D).5 755 F.2d at 860. The
interpreter’s statements were not admitted as the defendant’s own statements under
5
Those rules provide that:
. . . (d) Statements That Are Not Hearsay. A statement that meets the following
conditions is not hearsay: . . .
(2) An Opposing Party’s Statement. The statement is offered against an opposing
party and . . .
(C) was made by a person whom the party authorized to make a statement on the
subject;
(D) was made by the party’s agent or employee on a matter within the scope of
that relationship and while it existed . . . .
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Rule 801(d)(2)(A), but instead were treated either as a statement “made by a
person whom the party authorized to make a statement on the subject,” Fed. R.
Evid. 801(d)(2)(C), or as “made by the party’s agent or employee on a matter
within the scope of that relationship,” Fed. R. Evid. 801(d)(2)(D).
Thus, we viewed the interpreter, for hearsay purposes, as an agent of the
defendant, thereby making the interpreter’s statements of what the defendant said
attributable to the defendant. Alvarez, 755 F.2d at 860. In reaching this
conclusion, the court in Alvarez adopted verbatim and without any independent
analysis, the reasoning and conclusion of the court in Da Silva, wherein the Second
Circuit treated the interpreter as an agent of the defendant so long as the interpreter
“has a sufficient capacity, and there is no motive to misrepresent.” Alvarez, 755
F.2d at 860 (quoting Da Silva, 725 F.2d at 832). Under these circumstances, the
court in Da Silva noted that it would be appropriate to find the existence of an
agency relationship between the defendant and the interpreter, making the
interpreter a “language conduit” of the defendant for hearsay purposes. 725 F.2d at
832 (quoting United States v. Ushakow, 474 F.2d 1244, 1245 (9th Cir. 1973)).6
6
Other circuits that have considered the same question have also concluded that
interpreter statements of translations of the defendant’s statements are admissible under Rules
801(d)(2)(C) or (D), i.e. that the interpreter was either an agent of the defendant or authorized by
the defendant to speak on the defendant’s behalf. Generally, to admit such statements under the
hearsay rules, courts are required to consider several factors demonstrating the reliability of the
interpretation, including “which party supplied the interpreter, whether the interpreter had any
motive to mislead or distort, the interpreter’s qualifications and language skill, and whether
actions taken subsequent to the conversation were consistent with the statements as translated.”
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While Alvarez and Da Silva hold admissible, under the hearsay rules, a
witness’s testimony of an interpreter’s out-of-court statements of what the
defendant said, neither case holds that the defendant is the declarant of the
interpreter’s statements.7 Indeed, Da Silva, which our circuit adopted in Alvarez
without any separate analysis, specifically rejected the characterization of the
interpreter’s statements as the same as the defendant’s own statements.
In Da Silva, as in Charles’s case, a law enforcement officer interrogated the
defendant, who spoke Spanish, through the interpretation assistance of a certified
Spanish language interpreter. 725 F.2d at 829. At trial, the government’s evidence
included the law enforcement officer’s testimony of the interpreter’s oral
translations of the defendant’s answers during the interrogation. Id. at 830. On
appeal, the Second Circuit considered whether this testimony was admissible under
the hearsay rules. Id. at 831–32. The court first explained that had the law
enforcement officer spoken directly with the defendant and could have himself
testified to the defendant’s answers, his testimony as to the defendant’s statements
United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991); see also United States v. Orm
Heing, 679 F.3d 1131, 1139 (9th Cir. 2012); United States v. Vidacak, 553 F.3d 344, 352 (4th
Cir. 2009); United States v. Sanchez-Godinez, 444 F.3d 957, 960–61 (8th Cir. 2006); United
States v. Cordero, 18 F.3d 1248, 1252–53 (5th Cir. 1994).
7
Neither of these cases raised the claim that the admission of the interpreter’s statements
through the third-party witness violated the Confrontation Clause. Thus, the courts did not have
before them the question of whether the declarant, for purposes of the defendant’s constitutional
right to confrontation, was the interpreter.
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would have been non-hearsay under Rule 801(d)(2)(A), which treats as non-
hearsay the defendant’s own statement. 8 Id. at 831. But the court noted that the
law enforcement officer could not testify to what the defendant had said, but
instead could testify only to what the interpreter told him the defendant had said
and therefore did not treat the testimony as the defendant’s own statement under
Rule 801(d)(2)(A). Id. Instead, the court in Da Silva treated the interpreter as the
“agent” of the defendant, making the interpreter’s oral translation attributable to
the defendant and thus, admissible under Rules 801(d)(2)(C) or (D) of the rules of
evidence. Id.
Had the Second Circuit in Da Silva, or for that matter, our court when
adopting Da Silva in Alvarez, viewed the interpreter’s statements as the
defendant’s own statements then it simply would have admitted them under Rule
801(d)(2)(A) and have had no need to look to Rules 801(d)(2)(C) or (D), which
permit the admission of statements made by a declarant who is not the defendant,
but rather someone authorized to speak for the defendant. The court recognized
that there is a meaningful distinction between a defendant’s own statements made
directly to the testifying witness (admissible under Rule 801(d)(2)(A)) and ones
8
Specifically, at the time Da Silva was decided, Rule 801(d)(2)(A) provided that a
statement was a non-hearsay admission if “[t]he statement is offered against a party and is (A)
his own statement . . . .” Da Silva, 725 F.2d at 831 (citing Fed. R. Evid. 801(d)(2)(A)). The
current version of Rule 801(d)(2)(A) provides that a statement that is offered against a party is
admissible if it “(A) was made by the party in an individual or representative capacity.”
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that are merely attributable to him as the defendant’s admissions made through the
statements of another person to the testifying witness (admissible under Rule
801(d)(2)(C) or (D)). Both types of testimony are admissible, but only under
distinct hearsay rules of evidence because they entail conceptually different views
of whether the defendant is the declarant of the statements that are being testified
to in court.
Moreover, the characterization in Da Silva and Alvarez of an interpreter as a
“language conduit” is not a determination on the question of whether the defendant
is the declarant of the interpreted statements for purposes of the Confrontation
Clause. In referring to an interpreter as a “language conduit,” the court in Da Silva
did so in the context of concluding that an interpreter may be treated as the
defendant’s agent, for purposes of the hearsay rules, so long as the interpreter “has
no motive to mislead” and there is “no reason to believe the translation is
inaccurate.” 725 F.2d at 832; see also Alvarez, 755 F.2d at 860 (finding the
reasoning of the Second Circuit in Da Silva regarding the inferred agency between
an interpreter and defendant as persuasive). Under these circumstances, the
interpreter is perceived as orally translating the words of the defendant
competently for purposes of hearsay. Da Silva’s view of an interpreter as a
“language conduit,” adopted by our circuit in Alvarez, was premised on the court’s
assessment of the interpreter’s reliability and trustworthiness, principles supporting
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the admissibility of the interpreter’s statements under Rules 801(d)(2)(C) or (D),
but having no bearing on the Confrontation Clause. See Bullcoming v. New
Mexico, 564 U.S. —, —, 131 S. Ct. 2705, 2720 n.1 (2011) (Sotomayor, J.,
concurring) (“The rules of evidence, not the Confrontation Clause, are designed
primarily to police reliability; the purpose of the Confrontation Clause is to
determine whether statements are testimonial and therefore require
confrontation.”). 9
Even though an interpreter’s statements may be perceived as reliable and
thus admissible under the hearsay rules, the Court, in Crawford, rejected reliability
as too narrow a test for protecting against Confrontation Clause violations. See
9
The special concurrence takes the position that it is not so obvious that the identity of
the declarant of the out-of-court statements to which the CBP officer testified to in court is the
Creole interpreter. Indeed the special concurrence reads our decision in Alvarez and other
circuit court decisions as treating “the foreign-language speaker as the declarant and the
interpreter merely as a ‘language conduit’ for the speaker.” Special concurrence at n.2.
However, as explained herein, Alvarez, in adopting Da Silva, specifically rejected the option of
admitting the interpreter’s statements as the defendant’s own, thus necessarily viewing the
interpreter as the declarant of only her own statements. Contrary to the special concurrence’s
statement, courts use the “language conduit” theory not to establish the defendant as the
declarant of the out-of-court statements but instead to establish the competence and
trustworthiness of the interpreter so that the interpreter’s out-of-court statements on their own
can be admitted under the criteria of Rules 801(d)(2)(C) or (D). Unlike the special concurrence,
we find unpersuasive the Ninth Circuit’s use of the language conduit theory and its underlying
factual considerations to conclude that the interpreter and defendant are identical for testimonial
purposes. See e.g., United States v. Nazemian, 948 F.2d 522, 528 (9th Cir. 1991). None of the
factors, i.e. who supplied the interpreter, motive to mislead, or qualifications and skills, that
courts consider when deciding whether to admit, under Rules 801(d)(2)(C) or (D), an
interpreter’s otherwise inadmissible hearsay statements bear upon the basic fact that the
interpreter is the speaker (declarant) of the out-of-court English language statements that are
being testified to in court by a third party. And it is the declarant who is subject to the
requirements of the Confrontation Clause.
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541 U.S. at 60 (“This malleable standard [of reliability] often fails to protect
against paradigmatic confrontation violations.”); id. at 61 (“Where testimonial
statements are involved, we do not think the Framers meant to leave the Sixth
Amendment’s protection to . . . amorphous notions of reliability.”). Instead, the
Court held that the Confrontation Clause “commands, not that evidence be reliable,
but that reliability be assessed in a particular manner: by testing in the crucible of
cross-examination.” Id.; see also id. at 68–69 (“Where testimonial statements are
at issue, the only indicium of reliability sufficient to satisfy constitutional demands
is the one the Constitution actually prescribes: confrontation.”). 10 And since
Crawford, the Court has emphatically reiterated its rejection of a reliability
standard, which may be sufficient under the rules of evidence, but does not satisfy
the Confrontation Clause. See Bullcoming, 564 U.S. at —, 131 S. Ct. at 2715
(explaining the Court had “settled in Crawford that the ‘obviou[s] reliab[ility]’ of a
10
In United States v. Jimenez , 564 F.3d 1280, 1286 (11th Cir. 2009), we stated “[t]here
can be no doubt that the Confrontation Clause prohibits only statements that constitute
impermissible hearsay.” (emphasis in original). To the extent that this statement has been
misread as laying out a rule that the Confrontation Clause is satisfied by conducting an analysis
of the challenged testimony under the Federal Rules of Evidence governing hearsay, such a
reading would be directly contrary to Crawford’s clear teaching that the when testimonial
evidence is at issue, what matters is the unavailability of and a prior opportunity to cross-
examine the declarant. Crawford, 541 U.S. at 68. In Jimenez , the statements at issue were not
testimonial as they were not being offered for the truth of the matter, and thus, did not implicate
the Confrontation Clause.
As Crawford instructs, a proper Confrontation Clause analysis does not begin or end with
a determination of whether a statement constitutes “impermissible hearsay.” Instead, a proper
analysis first requires a determination of whether the declarant’s statement is “testimonial,” i.e. a
declaration offered for the purpose of proving some fact to be used at trial, and if so, the Sixth
Amendment is satisfied only if the declarant is unavailable and there was a prior opportunity for
cross-examination.
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testimonial statement does not dispense with the Confrontation Clause.”) (internal
citation omitted); see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 319 n.6
(2009) (“The analysts who swore the affidavits provided testimony against
Melendez–Diaz, and they are therefore subject to confrontation; we would reach
the same conclusion if all analysts always possessed the scientific acumen of Mme.
Curie and the veracity of Mother Theresa.”).
Thus, neither Alvarez, nor Da Silva upon which it is based, hold that the
defendant is the declarant of the statements made by the interpreter to the testifying
third-party witness, and thus, do not resolve Charles’ Confrontation Clause claim. 11
Rather, Crawford and the Supreme Court’s post-Crawford jurisprudence govern
our resolution of Charles’s Confrontation Clause claim. In addition to Crawford,
the Supreme Court has emphatically reiterated, in Melendez-Diaz and Bullcoming,
that where the admission of an absent declarant’s testimonial statements is at issue,
the Confrontation Clause permits their admission only if the declarant is
legitimately unavailable to testify and only if the defendant has had a prior
11
In so holding, Alvarez, may remain the law in our circuit for purposes of the
admissibility of interpreter statements under Rules 801(d)(2)(C) or (D). However, as the Court
made clear in Crawford, where testimonial statements are concerned, the Sixth Amendment’s
protection cannot be left to the “vagaries of the rules of evidence,” which may sweep too broadly
or too narrowly to comport with the Sixth Amendment’s Confrontation Clause. See 541 U.S. at
60-61. Thus, where a defendant challenges the admissibility of evidence, he may do so both as a
violation of the rules of evidence as well as a violation of his Sixth Amendment right to
confrontation, the resolution of which necessarily entail two distinct inquiries.
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opportunity to cross-examine the declarant. Crawford, 541 U.S. at 53–54;
Melendez-Diaz, 557 U.S. at 309, 311; Bullcoming, 131 S. Ct. at 2713.
In Melendez-Diaz, in a “rather straightforward application of [its] holding in
Crawford,” the Court held that a forensic laboratory report identifying a substance
as cocaine was testimonial for purposes of the Confrontation Clause because it had
been created to serve as evidence in a criminal proceeding. 557 U.S. at 310–12.
The Court held that the affiants to the report sought to be introduced were
witnesses subject to confrontation and the defendant “was entitled to be confronted
with the analysts at trial.” Id. at 311. The Court rejected the argument that the
laboratory report was sufficiently reliable such that confrontation of the forensic
analysts would serve little purpose because their testimony was the “resul[t] of
neutral, scientific testing” and the analysts would have little reason to change the
results of their tests. Id. at 317. The Court explained that this argument was no
more than an attempt to return to Roberts’ “trustworthiness” standard for the
admissibility of evidence under the Confrontation Clause despite Crawford’s
command that the “Constitution guarantees one way: confrontation.” Id. at 317–
18. Likewise in Charles’s case, the interpreter’s statements are testimonial as they
were specifically obtained for use in a criminal investigation and the fact that the
interpreter may be competent does not exempt the interpreter from cross-
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examination.12 If, as we know from Melendez-Diaz, even results of “neutral,
scientific testing,” do not exempt the witness who performed the test from cross-
examination, certainly the Confrontation Clause requires an interpreter of the
concepts and nuances of language to be available for cross-examination at trial.13
More recently, the Supreme Court’s decision in Bullcoming makes clear that
the CBP officer’s testimony cannot substitute for confrontation of the interpreter
regarding her testimonial statements. In Bullcoming, the Government introduced
into evidence a forensic laboratory report containing a testimonial certification
through the in-court testimony of an analyst who did not sign the certification or
personally perform or observe the reported test. 131 S. Ct. at 2713. The state
12
The parties stipulated only that the interpreter was fluent in Creole and English and that
she interpreted the interrogation of Charles by the CBP officer. We know nothing of her
background, education, training, or aptitude in language interpretation. Nonetheless, even if she
is a highly competent language interpreter, Crawford, Melendez-Diaz and Bullcoming require
that she be made available for confrontation regarding her testimonial statements.
13
Although Crawford, Melendez-Diaz, and Bullcoming leave no doubt that not even the
highest degree of reliability of a testimonial statement will satisfy the Confrontation Clause, we
note that the process of language interpretation is arguably much less “reliable” than the process
of scientific forensic laboratory testing, which the Supreme Court was not persuaded to exempt
from confrontation. As one scholar has succinctly put it, “not only is language inherently
ambiguous, so, too, is interpretation.” Ahmad, supra, at 1036. In addition to the difficulty in
accurately conveying the semantic meaning of language,
[T]he task of interpreting the intended meaning of a particular utterance—that is,
providing the contextual, pragmatic meaning of specific language—is even more
profound. While words and grammatical structure may signal the speaker’s
intended meaning, they do not represent it exactly. Rather, the listener must rely
upon a number of additional, external sources of information to resolve the
otherwise ambiguous pragmatic meaning. . . . [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.
Id.
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supreme court upheld the introduction of the report, without proof of the
unavailability of or the defendant’s prior opportunity to cross-examine the
certifying analyst, on the grounds that the forensic analyst who testified in court
about the report was an adequate substitute. Id. at 2714. The state court explained
that the analyst who testified was qualified as an expert and could testify as to the
operation of the machine and the established laboratory procedures. Id. at 2713.
Moreover, the state court reasoned, the certifying analyst was merely a “scrivener”
simply reporting “a machine-generated number” that did not call for any
“interpretation or exercise of independent judgment.” Id. at 2714–15.
The Supreme Court, in no uncertain terms, rejected the state court’s
reasoning. “[T]he comparative reliability of an analyst’s testimonial report drawn
from machine-produced data does not overcome the Sixth Amendment bar.” Id. at
2715. Instead, the Court explained that the forensic analysts “who write reports
that the prosecution introduces must be made available for confrontation even if
they possess ‘the scientific acumen of Mme. Curie and the veracity of Mother
Teresa.’” Id. (quoting Melendez-Diaz, 557 U.S. at 319 n.6.). Accordingly, the
Court concluded that “the [Confrontation] Clause does not tolerate dispensing with
confrontation simply because the court believes that questioning one witness about
another’s testimonial statements provides a fair enough opportunity for cross-
examination.” Id. at 2716; see also United States v. Ignasiak, 667 F.3d 1217,
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1230–33 (11th Cir. 2012) (applying Bullcoming to reject as a violation of the
Confrontation Clause the in-court testimony of a medical examiner as not being a
“constitutionally adequate surrogate for the actual medical examiner who
performed the autopsy”).
The same rationale applies to the CBP officer’s testimony of the interpreter’s
statements. First, like the “surrogate” forensic analyst in Bullcoming, the CBP
officer is the “surrogate” for the interpreter. Second, even though the certifying
analyst was seen as a “mere scrivener” who was just reporting numbers generated
from a machine, the Supreme Court held that the reliability of the certifying
analyst’s report of these machine generated numbers could not satisfy the
Confrontation Clause, absent his unavailability for confrontation. Bullcoming, 131
S. Ct. at 2714–15. The Supreme Court could not have been clearer that reliability,
absent cross-examination, is irrelevant for purposes of the Confrontation Clause. If
the Court in Bullcoming required the certifying analyst to be subject to cross-
examination, rejecting any, albeit expert, “surrogate” third-party testimony, so too
must a language interpreter and not a substitute third party be subject to cross-
examination. Id. at 2715. Treating the CBP officer as a “surrogate” for the
interpreter, a much less suitable substitute than the expert testifying in Bullcoming,
does not satisfy Charles’s constitutionally protected right to cross-examination of
the interpreter. Thus, under the circumstances of this case, it is the interpreter who
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is subject to “the only indicium of reliability sufficient to satisfy constitutional
demands,” that is: confrontation. Crawford, 541 U.S. at 69.14
Accordingly, having concluded that it was a violation of Charles’s Sixth
Amendment right to confrontation to admit the CBP officer’s testimony of the
interpreter’s statements of what Charles said where Charles had no opportunity to
cross-examine the interpreter, we must next determine whether this error was plain.
See Olano, 507 U.S. at 734 (“The second limitation on appellate authority . . . is
that the error be ‘plain.’”). Here, we cannot say that the error in admitting the CBP
officer’s testimony was “plain” as there is no binding circuit precedent (prior to our
decision here) or Supreme Court precedent clearly articulating that the declarant of
the statements testified to by the CBP officer is the language interpreter. See
United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (“[T]he law of this
14
The government seems to suggest that we should hold Charles accountable for the
missed opportunity to cross-examine the interpreter given her Sixth Amendment right to compel
witnesses in her favor. The government’s argument misunderstands its obligation to produce
witnesses against the defendant. In Melendez-Diaz, the Court clearly held that it is the
government who must produce witnesses adverse to the defendant. “The text of the [Sixth]
Amendment contemplates two classes of witnesses—those against the defendant and those in his
favor. The prosecution must produce the former . . . .” Melendez-Diaz, 557 U.S. at 313. Indeed
the Court rejected this exact argument in Melendez-Diaz because “[c]onverting the prosecution’s
duty under the Confrontation Clause into the defendant’s privilege under state law or the
Compulsory Process Clause” would leave the defendant bearing the consequences of “adverse-
witness no-shows.” Id. at 324. “More fundamentally, the Confrontation Clause imposes a
burden on the prosecution to present its witnesses, not on the defendant to bring those adverse
witnesses into court.” Id.
And although we may even agree that there are “other ways—and in some cases better
ways—to challenge or verify the results of [the interpretation]. . . . [t]he Constitution guarantees
one way: confrontation. We do not have license to suspend the Confrontation Clause when a
preferable trial strategy is available.” Melendez-Diaz, 557 U.S. at 318
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circuit [is] that . . . there can be no plain error where there is no precedent from the
Supreme Court or this Court directly resolving” the issue.). 15
15
The special concurrence would decline to resolve whether it was error to admit the
interpreter’s statements under the Confrontation Clause stating that our court generally does not
determine whether there was error when we can dispose of a claim on one of the other outcome-
determinative elements of the plain error standard. While it may be prudent in certain cases, the
test calls for a determination of whether error occurred in the first instance. In Olano, the
Supreme Court clearly articulated that appellate courts must answer three questions before
providing relief upon plain error review. The first of those steps is to ask whether there was
error. Olano, 507 U.S. at 732. Accordingly, we have done so here. Second, courts then ask
whether that error was plain. Id. at 734. We have done this as well, concluding that it was not,
thus ending our inquiry. Had we concluded otherwise, we would have had to determine whether
such plain error affected Charles’s substantial rights. Id. Moreover, our Court does not always
assume arguendo that there was error or skip to the outcome-determinative prong of the plain
error test. See e.g., United States v. Rodriguez, 398 F.3d 1291, 1306 (11th Cir. 2005) (finding
error that was plain but denying claim as defendant failed to satisfy the third prong of plain error
review by showing that the error affected his substantial rights); United States v. Cano, 289 F.3d
1354, 1364 n.23 (11th Cir. 2002) (concluding admission of witness’s testimony was error and
that it was plain but that it nonetheless did not affect his substantial rights).
The special concurrence’s position is that we should apply this prudential rule of
abstention here because a constitutional question is at issue. We do not quarrel with the premise
that constitutional avoidance can be compelling in some cases. However, here, the only issue
that is even arguably disputed, by the special concurrence or the government, is the identity of
the declarant, which certainly does not entail any constitutional inquiry. While we had to clarify
the meaning of circuit precedent addressing the admissibility of out-of-court language interpreter
statements, and hence could not conclude that the error in this case was plain, none of the
analysis about the identity of the interpreter involved any constitutional interpretation.
Moreover, as we have more than adequately addressed in this opinion, the Supreme Court’s
jurisprudence in Crawford, Melendez-Diaz, and Bullcoming unequivocally resolve the
constitutional question of what the Confrontation Clause requires when the government seeks to
introduce out-of-court testimonial statements through third-party testimony. These cases have
rejected (not once, but three times) the hearsay rules’ standard of reliability for determining the
admissibility under the Confrontation Clause of out-of-court testimonial statements, and instead
have mandated cross-examination. That the Supreme Court may still be fleshing out what types
of statements are considered “testimonial” is of no moment in this case and certainly does not put
its decisions in Crawford, Melendez-Diaz, and Bullcoming in “some flux.”
Here, it is prudential and judicially efficient to resolve this question now, providing
clarification and guidance to the district courts, government, and defendants who litigate under
the circumstances presented in this case. Contrary to the special concurrence’s position, there is
no fact-finding that a district court would need to make that would aid us in identifying the
declarant in this case. Certainly if we had to determine whether the admission of the
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Because we cannot say that the error in admitting the CBP officer’s
statements was plain, we are unable to provide relief and thus AFFIRM Charles’s
conviction.
AFFIRMED.
interpreter’s statements was permissible under the rules of evidence, we would need findings on
her motive to mislead and competency, but that is not the issue in this case. Likewise, the parties
had the opportunity to fully brief all of the elements of the plain error standard, including the
critical element of whether the admission of the interpreter’s statements violated Charles’s rights
under the Confrontation Clause. That the government chose to focus only on the “plain” prong
of the three-part plain error standard should not preclude us from resolving the appeal before us.
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MARCUS, Circuit Judge, specially concurring:
I concur in the judgment reached by the panel majority. There was no plain
error in this case, so we must affirm Charles’s conviction. However, I write
separately because I believe it unnecessary to decide a novel and difficult question
of constitutional law in an area where the Supreme Court’s jurisprudence is still
evolving. The majority makes a serious and substantial argument for its position,
and it may well be right. But I would wait until the necessity of deciding the
question sharpens both the adversarial presentation of the issue and our decision-
making process.
This case presents a question that ordinarily does not trouble courts
addressing Confrontation Clause challenges, since the answer is usually obvious:
who is the declarant of an out-of-court statement? In this case, however, the answer
is not obvious. Charles made a statement in Creole to a government-provided
interpreter, who then interpreted the statement from Creole to English. The
interpreter then made the English-language statement to the officer who testified at
Charles’s trial. In order for Charles to succeed on her Confrontation Clause claim,
she must establish both that the declarant of the English-language statement was
the interpreter, not herself, see United States v. Brown, 441 F.3d 1330, 1358-59
(11th Cir. 2006) (admission of defendant’s own statements does not violate the
Confrontation Clause, since a defendant does not have the right to confront
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himself), and that the statement was testimonial, see Michigan v. Bryant, 131 S. Ct.
1143, 1153 (2011); Crawford v. Washington, 541 U.S. 36, 51-52 (2004). 1
Moreover, because Charles failed to object to the admission of the officer’s
testimony at trial, we review her claim on appeal only for plain error. Maj. Op. at
5.
As the panel majority soundly concludes, there was no plain error because,
under our precedents, “there can be no plain error when there is no precedent from
the Supreme Court or this Court directly resolving” the issue. Maj. Op. at 24-25
(quoting United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005)). No
Supreme Court or Eleventh Circuit precedent addresses the question of who the
declarant of an interpreted statement is, at least for purposes of post-Crawford
Confrontation Clause analysis.2 In the Supreme Court’s recent run of
1
The majority opinion suggests that determining the identity of the declarant is not a
“constitutional inquiry,” Maj. Op. at 25 n.15, but this parses the Confrontation Clause analysis
too finely. The Confrontation Clause itself provides the defendant with the right “to be
confronted with the witnesses against him,” U.S. Const. amend. VI (emphasis added), which
requires us, as a constitutional matter, to discern who the witness is. And indeed, as Brown has
established, if the declarant is the defendant, then there is no confrontation problem.
2
For many years now, courts have treated the foreign-language speaker as the declarant
and the interpreter merely as a “language conduit” for the speaker as long as certain factual
conditions are met, although those decisions either predate Crawford or did not directly address a
Confrontation Clause challenge. See United States v. Alvarez, 755 F.2d 830, 860 (11th Cir.
1985) (“Where . . . there is no motive to mislead and no reason to believe the translation is
inaccurate” -- in other words, where the interpreter is reliable -- there is “a testimonial identity
between declarant and translator” (quoting United States v. Da Silva, 725 F.2d 828, 832 (2d Cir.
1983))); see also United States v. Vidacak, 553 F.3d 344, 352-53 (4th Cir. 2009); United States
v. Sanchez-Godinez, 444 F.3d 957, 960-61 (8th Cir. 2006); United States v. Cordero, 18 F.3d
1248, 1252-53 (5th Cir. 1994); United States v. Nazemian, 948 F.2d 522, 525-28 (9th Cir. 1991)
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Confrontation cases, the identity of the declarant has never been at issue. Rather,
those cases have sought to define which statements count as “testimonial,” see
Bryant, 131 S. Ct. at 1166-67 (statements that enabled police to respond to an
ongoing emergency were not testimonial); Melendez-Diaz v. Massachusetts, 557
U.S. 305, 310 (2009) (affidavits certifying that tested substances were cocaine
were testimonial); Davis v. Washington, 547 U.S. 813, 827-28 (2006), and have
clarified that, where a statement is testimonial, no substitute for the original
declarant is acceptable, see Bullcoming v. New Mexico, 131 S. Ct. 2705, 2715
(2011) (analyst who prepared blood-alcohol analysis had to be made available for
cross-examination and could not be replaced with another analyst); Melendez-
Diaz, 557 U.S. at 317-19 & n.6 (affidavits could not substitute for the analyst
simply because the affidavits reported the results of scientific testing, even if the
analyst “possessed the scientific acumen of Mme. Curie and the veracity of Mother
Theresa”). Neither has this Court addressed, in a published opinion, the issue of
whether an interpreter or the foreign-language speaker is the declarant of an
interpreted statement for Confrontation Clause purposes. In the absence of any
(considering and rejecting a Confrontation Clause challenge to the admissibility of an
interpreter’s out-of-court statements); United States v. Beltran, 761 F.2d 1, 9-10 (1st Cir. 1985);
Da Silva, 725 F.2d at 832. Even after Crawford, the Ninth Circuit reaffirmed that Nazemian’s
Confrontation Clause holding remained the law of that Circuit. Although the Ninth Circuit
recognized that Crawford and its progeny were in some tension with Nazemian’s rationale, it
concluded that those cases never addressed the issue of the identity of the declarant and therefore
had not abrogated Nazemian. See United States v. Orm Hieng, 679 F.3d 1131, 1139-41 (9th Cir.
2012).
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precedent from either the Supreme Court or this Court, any error that may have
occurred in this case could not be plain.
Generally, when it is clear that we can dispose of a plain-error argument
based on the absence of precedent, we do not undertake the task of determining
whether there was error, which may be the more difficult question. Instead, we
may assume arguendo that there was error, or skip that question, and move on to
the outcome-determinative prong of the plain-error test. E.g., United States v.
Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (per curiam) (“[W]e need not reach
[the Equal Protection] question because any error would not be plain.”); see United
States v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012) (“We need not address
whether a constructive amendment amounts to a per se reversible error . . .
because, even if we assume that the district court erred, the error was not plain.”);
United States v. Pantle, 637 F.3d 1172, 1177 (11th Cir. 2011) (per curiam)
(assuming plain error but finding that the error did not affect the defendant’s
substantial rights); United States v. Swatzie, 228 F.3d 1278, 1282 (11th Cir. 2000)
(same); see also United States v. Hadley, 431 F.3d 484, 516 (6th Cir. 2005)
(Sutton, J., concurring) (where the third prong of the plain-error test decided the
case, “we need not address the difficult Crawford issues that this case otherwise
presents”).
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This reluctance stems, at least in part, from the long-standing prudential
policy “that we ought not to pass on questions of constitutionality . . . unless such
adjudication is unavoidable.” Spector Motor Serv., Inc. v. McLaughlin, 323 U.S.
101, 105 (1944); see United States v. Resendiz-Ponce, 549 U.S. 102, 104 (2007);
Jean v. Nelson, 472 U.S. 846, 854 (1985); Three Affiliated Tribes of Fort Berthold
Reservation v. Wold Eng’g, P.C., 467 U.S. 138, 157 (1984); Ashwander v. TVA,
297 U.S. 288, 346-47 (1936) (Brandeis, J., concurring) (“The Court will not
anticipate a question of constitutional law in advance of the necessity of deciding
it. It is not the habit of the court to decide questions of a constitutional nature
unless absolutely necessary to a decision of the case.” (internal quotation marks
and citations omitted)). Declining to address an unnecessary constitutional
question preserves “the unique place and character, in our scheme, of judicial
review of governmental action for constitutionality,” and pays heed to
“considerations of timeliness and maturity, of concreteness, definiteness, certainty,
and of adversity of interests affected.” Rescue Army v. Mun. Court, 331 U.S. 549,
571, 573-74 (1947). It also avoids “substantial expenditure of scarce judicial
resources on difficult questions that have no effect on the outcome of the case.”
Pearson v. Callahan, 555 U.S. 223, 236-37 (2009).
As I see it, applying this rule would be wise here, for several reasons. To
start with, we did not have the benefit of any factfinding from the district court that
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may be pertinent to resolving this issue, since Charles did not object to this
testimony. According to at least one court of appeals, the identity of the declarant
is a factbound determination that weighs multiple factors, including who provided
the interpreter and the interpreter’s qualifications. See United States v. Nazemian,
948 F.2d 522, 527-28 (9th Cir. 1991). In addition, because of the posture of this
case, the government primarily argued that the lack of binding precedent meant
that the error was not plain, depriving us of full merits briefing on the underlying
constitutional question.
Moreover, this area of law appears to be in some flux. Although the majority
relies on the proposition that Crawford wholly severed the link between
Confrontation Clause analysis and the rules of evidence or reliability, see Maj. Op.
at 23 (“The Supreme Court could not have been clearer that reliability, absent
cross-examination, is irrelevant for purposes of the Confrontation Clause.”), the
Supreme Court’s subsequent cases have suggested that those considerations may
remain relevant, at least in the context of determining whether statements are
testimonial. Compare Bryant, 131 S. Ct. at 1155 (to determine whether a statement
is testimonial based on its primary purpose, “standard rules of hearsay, designed to
identify some statements as reliable, will be relevant”), with id. at 1174 (Scalia, J.,
dissenting) (disapproving of Bryant as “a gross distortion of the law -- a revisionist
narrative in which reliability continues to guide our Confrontation Clause
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jurisprudence”), id. (warning that the Court was returning to Ohio v. Roberts’s
“unworkable standard unmoored from the text and the historical roots of the
Confrontation Clause”), and Bullcoming, 131 S. Ct. at 2725 (Kennedy, J.,
dissenting) (“[T]he Court insists . . . reliability does not animate the Confrontation
Clause. Yet just this Term the Court ruled [in Bryant] that, in another confrontation
context, reliability was an essential part of the constitutional inquiry.” (citations
omitted)). As one treatise has noted, the majority opinion in Michigan v. Bryant
has apparently incorporated “a Ohio v. Roberts-like assessment of a statement’s
‘reliability’ into its Confrontation Clause analysis.” 4 Clifford S. Fishman & Anne
T. McKenna, Jones on Evidence § 25A:17.50 (7th ed. 2012).
In light of these concerns and the likelihood that an analogous case without
the limitations of plain-error review will almost surely reach this Court, I would
not decide this Confrontation issue today.
33