U.S. v. Ball ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-7266
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL BARNARD BALL,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Mississippi
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(March 24, 1993)
Before GARWOOD and HIGGINBOTHAM, Circuit Judges, and SCHWARTZ*,
District Judge.
PER CURIAM:
Michael Ball appeals his conviction for possession of a stolen
United States Treasury check, in violation of 18 U.S.C. §1708.
Finding no error, we affirm.
I. FACTS
On May 4, 1990, the United States Treasury issued a check in
the amount of $963.00 for payment of a federal tax refund due Louis
B. Buchanan. Although the check was mailed to Buchanan's residence
*
Senior District Judge of the Eastern District of
Louisiana, sitting by designation.
1
in Columbus, Mississippi, he never received the check. The
Government claims the check was intercepted by Ball, who lived in
Buchanan's neighborhood and had access to his mailbox. Ball
subsequently attempted to cash the treasury check at a grocery
store located in a nearby town. In doing so, Ball enlisted the
assistance of Dudley Wriley, a co-worker. Wriley knew the owners
of the grocery store, and it was in reliance of this relationship
that one of the owners agreed to cash the treasury check despite
Ball's failure to present proper identification.
Ball was later charged in a two-count indictment with passing
and possessing a stolen United States Treasury check in violation
of 18 U.S.C. §§ 510, 1708. A jury found Ball guilty of possessing
a stolen treasury check as alleged in count two of the indictment,
but was unable to reach a verdict with respect to the passing
charge contained in count one.1
II. DISCUSSION
The Government's principal evidence was the testimony of Dudley
Wriley. Neither party disputes that Dudley Wriley was deaf, his
spoken words unintelligible, or that his wife was appointed and
sworn as an interpreter of his speech. Ball, however, asserts that
it was improper to appoint an interpreter where, as here, the
witness could have responded to counsel's questions through written
statements or other unspecified means.
A trial court's decision to appoint an interpreter is reviewed
1
It is with the permission of the district court that
Ball has been allowed to bring this out-of-time appeal.
2
under an abuse of discretion standard. See United States v.
Martinez, 616 F.2d 185, 188 (5th Cir. 1980); Suarez v. United
States, 309 F.2d 709, 712 (5th Cir. 1963). The trial court held a
hearing outside the presence of the jury to determine the proper
procedure to elicit Dudley Wriley's testimony. The Government
proposed to have Wriley's wife, Ophelia Wriley, act as an
interpreter to which Ball objected, but failed to offer an
alternative. Thereafter, the trial court gave the parties an
opportunity to question Wriley's wife with respect to her ability
and qualifications and the opportunity to test the adequacy of her
interpretive skills by allowing counsel from both sides to ask
questions of Wriley through his wife. The trial court found that
the long-standing relationship between the witness and his wife
allowed the two to communicate with one another freely and then
qualified her as an expert pursuant to Federal Rules of Evidence
Rules 604 and 702. The defendant renewed his objection to the use
of an interpreter, but he continued to offer no alternative to the
Government's proposed method of eliciting the testimony and his
objection was overruled. Under these circumstances, we find the
trial court's initial decision to appoint an interpreter to have
been within its sound discretion.
Ball next argues that the trial court erred in failing to
terminate the questioning of Wriley when it became necessary for
his wife to repeat and rephrase questions posed by counsel. Ball
further contends that the trial court erred in allowing Wriley's
wife to interject statements outside the scope of her husband's
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responses to the questions posed. At the trial level, Ball's
objection was limited to receiving the testimony through an
interpreter and Ball's qualitative objections are raised for the
first time on appeal. In the absence of an objection below, we may
only reverse the conviction if the trial court's error, if any,
rises to the level of plain error. See United States v. King, 505
F.2d 602, 605 (5th Cir. 1974).
It is well established that an interpreter must have no
interest in the outcome of a criminal proceeding if he or she is to
act in his or her professional capacity during the course of those
proceedings. There is, however, no absolute bar against appointing
a witness' relative to act as an interpreter when circumstances
warrant such an appointment. See United States v. Addonizio, 451
F.2d 49, 68 (3d Cir. 1971), cert. denied, 405 U.S. 936, 92 S. Ct.
949 (1972). Rather, the trial court must take into consideration
the unique circumstances of each case including the interpreter's
interest and involvement in the case, the necessity of having a
family member act as an interpreter, and available alternative
modes of testimony. Here, the interpreter's only connection to the
defendant was that she was married to a witness at the defendant's
trial. Moreover, the nature of the witness's handicap made it
necessary for the trial court to appoint someone familiar with the
witness and "prevented the court from obtaining a wholly
disinterested person." See Prince v. Beto, 426 F.2d 875, 876 (5th
Cir. 1970). In the absence of the slightest showing that the
interpreter harbored any feelings of malice or prejudice toward the
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defendant, we find no reason to believe that Mrs. Wriley's interest
in the trial's outcome was so prodigious as to pose a threat to the
fairness of the proceedings. Id. at 876-77.
Defendant's argument that the interpretation provided by
Wriley's wife was of such poor quality as to deprive the defendant
of a fair trial and his rights to due process is also without
merit. Our review of the record of the proceedings below revealed
that the interpreter posed the questions asked to her husband as
they were stated to her by counsel and re-phrased those questions
only when it was necessary to assist her husband in understanding
a particular question. Mrs. Wriley's translation of the
defendant's statements were likewise to the point and without
superfluous explanation. On the one occasion when Mrs. Wriley
interjected a statement that fell outside the scope of her
husband's response to a question, she relayed a fact within her
personal knowledge that had little, if any, bearing on the
defendant's participation in the alleged criminal conduct. The
defendant's complaint that Mrs. Wriley's statement denied him his
right to cross-examine a Government witness is without foundation.
It was well within the defendant's right to have called Mrs. Wriley
as a witness in the proceedings, and his failure to do so indicates
that he found her statement to be unworthy of further elaboration
or explanation. See Fairbanks v. Cowan, 551 F.2d 97, 99 (6th Cir.
1977); see also United States v. Owen, 484 U.S. 554,559, 108 S. Ct.
838, 842 (1988). Finally, the trial court went to great lengths to
instruct the jury regarding Mrs. Wriley's limited role within the
5
proceedings thereby ensuring that her particular participation as
an interpreter was well understood by the jury. We therefore hold
that the district court did not commit error, let alone, plain
error.2
Ball's final argument contends that the evidence admitted at
trial was insufficient to support his conviction. On appeal, the
Government is entitled to have us examine the evidence in the light
most favorable to it--to make all reasonable inferences and
credibility choices in favor of the verdict. See United States v.
Jokel, 969 F.2d 132, 134 (5th Cir. 1992). "The evidence is
sufficient if a reasonable trier of fact could have found that it
established guilt beyond a reasonable doubt. Every reasonable
hypothesis of innocence need not have been excluded, nor need the
evidence be entirely inconsistent with innocent conduct." Id.
(citing United States v. Vasquez, 953 F.2d 176, 181 (5th Cir.),
cert. denied, __ U.S. __, 112 S. Ct. 2288 (1992). The evidence, in
this case, included testimony from Wriley that he had been asked by
Ball to help him cash the treasury check. The store owner, Marion
Killebrew, testified that she had cashed the treasury check for
Wriley and a man whom she believed to be Ball. Further implicating
Ball was the appearance of his fingerprints and palm print on the
check. Finally, Louis Buchanan testified that he never gave Ball
2
As the defendant did not allege a violation of the Court
Interpreters Act of 1978, 28 U.S.C. §1827, at trial or on appeal
and since a conviction will be reversed based on a failure to
comply with the Act's provisions only when fundamental unfairness
has resulted, we find it unnecessary to address whether the trial
court's decision to appoint Mrs. Wriley complied with the terms
of that statute.
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permission to cash or possess the check. We thus find that there
was more than sufficient evidence for a reasonable jury to have
convicted Ball as to count two of the indictment. See United
States v. Hall, 845 F.2d 1281, 1284 (5th Cir.), cert. denied, 488
U.S. 860 (1988).
There is no error in the record before us and, accordingly, we
AFFIRM.
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