United States v. Claudio Romo-Chavez , 681 F.3d 955 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 10-10424
Plaintiff-Appellee, D.C. No.
v.  4:09-cr-01045-
CLAUDIO ROMO-CHAVEZ, FRZ-JCG-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted
December 6, 2011—San Francisco, California
Filed May 23, 2012
Before: Diarmuid F. O’Scannlain and Marsha S. Berzon,
Circuit Judges, and Robert S. Lasnik, District Judge.*
Opinion by Judge O’Scannlain;
Concurrence by Judge Berzon
*The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
5677
5680 UNITED STATES v. ROMO-CHAVEZ
COUNSEL
M. Edith Cunningham, Assistant Federal Public Defender,
Tucson, Arizona, argued the cause and filed the briefs for the
appellant. With her on the briefs was Jon M. Sands, Federal
Public Defender for the District of Arizona.
Bruce M. Ferg, Assistant United States Attorney, Tucson,
Arizona, argued the cause and filed the brief for the appellee.
With him on the brief were Dennis K. Burke, United States
Attorney and Christina M. Cabanillas, Appellate Chief, for
the District of Arizona.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the Confrontation Clause or the
Federal Rules of Evidence prohibit the government from
introducing at trial a defendant’s admissions to a police offi-
cer because the translator who facilitated them, while conver-
sationally fluent, would not qualify as a court interpreter.
I
Claudio Romo-Chavez is a citizen and national of Mexico.
In May 2009, he attempted to enter this country at the DeCon-
cini Port of Entry in Nogales, Arizona, driving a 1999 Buick
Century. During primary inspection, he was greeted by Cus-
toms and Border Protection (“CBP”) Officer Brian Tipling.
Romo-Chavez told Officer Tipling that he was from Magda-
UNITED STATES v. ROMO-CHAVEZ 5681
lena, Mexico, and that he was entering the United States to
return two shirts to the Dillard’s store in Scottsdale. Finding
the story suspicious, Officer Tipling employed a long-handled
mirror to examine the underside of Romo-Chavez’s vehicle
and found evidence of tampering on the bolt holding the fuel
tank to the undercarriage.
Romo-Chavez was referred to secondary screening, where
he told CBP Officer David Aldrich that he was from some-
where between Obregon and Hermosillo, Mexico (several
hours by car south of Magdalena). He also stated that he was
going to “ ‘Tucson, maybe Phoenix,’ ” and that “part of it was
for business and part of it was for pleasure.”1 Aldrich, alerted
by Tipling and similarly suspicious of Romo-Chavez’s story,
examined the Buick. He noticed a tampering in the backseat
area above the gas tank as well as a smell he associated with
secret compartments.
A
CBP Officer Jeff Steger arrived with his drug detection
dog, who alerted to something in the vehicle. He informed his
supervisor, who called away Officer Aldrich. At this time,
Officer Steger collected some personal items from the Buick,
which he deemed to be of no evidentiary value and placed
them into a bag for storage. Romo-Chavez was promptly noti-
fied how he could collect these items.2 Another CBP Officer,
Edward Vejar, pried open a carefully constructed box located
in the Buick’s gas tank and found a number of packages con-
1
Because Officers Aldrich and Tipling speak Spanish, they did not
require the assistance of a translator. Though there was some discussion
of their qualifications at trial, Romo-Chavez does not challenge that matter
in this appeal.
2
Though Romo-Chavez’s attorney collected the currency that he had
possessed at the time of his arrest, the majority of the items remained in
CBP storage for months. They were eventually destroyed in accordance
with routine CBP protocol.
5682 UNITED STATES v. ROMO-CHAVEZ
taining white crystalline material, which tested presumptively
positive for methamphetamine.
B
While Officers Steger and Vejar were collecting these
items, Romo-Chavez was questioned by Special Agent
Andrew Simboli of Immigration and Customs Enforcement
(“ICE”). Romo-Chavez told Simboli that he was from
Nogales, Mexico (which is north of both Magdalena and
Obregon) and provided some basic biographical information.
Having exhausted his knowledge of Spanish, Agent Simboli
required a translator to facilitate further conversation.
With the assistance of CBP Officer David Hernandez,
Agent Simboli Mirandized Romo-Chavez in Spanish. Officer
Hernandez then translated as Romo-Chavez explained that he
came to the United States to return two shirts to a Dillard’s
in Phoenix. When Agent Simboli asked why he was not going
to the Dillard’s in Tucson, Romo-Chavez changed his answer
to say that he was indeed going to that store. Romo-Chavez
also told the agent that the previous Saturday he had received
an offer to sell the Buick in exchange for a small truck and
$2,000 and that he was going to meet the buyer at an Auto-
Zone in Nogales to complete the transaction. After Romo-
Chavez told Simboli that he had recently had an engine sensor
replaced in his car, Simboli asked him about the methamphet-
amine that had by this time been discovered in his car. Romo-
Chavez denied knowledge, and the interview ended.
Agent Simboli testified that he recognized proper nouns
such as “Phoenix” and “Dillard’s,” but otherwise depended on
Officer Hernandez’s translation. Though Romo-Chavez later
claimed not to have understood Officer Hernandez, the record
does not indicate that he ever told Hernandez or Simboli at
the time that he could not understand the questions.
UNITED STATES v. ROMO-CHAVEZ 5683
C
Further examination of the Buick revealed that several gal-
lons of gasoline in its tank had been displaced with almost six
kilograms of 99.6% pure methamphetamine. Investigation
also showed that Romo-Chavez had a history of crossing the
border with Gustavo Vargas-Dias, a known drug trafficker
who had boasted to him that he trafficked in narcotics. Romo-
Chavez was charged with knowing possession of metham-
phetamine with intent to distribute it in violation of 21 U.S.C.
§ 841(a)(1) and 841(b)(1)(A)(viii) and with importing the
substance into the United States in violation of 21 U.S.C.
§§ 960(a)(1) and 960(b)(1)(H).
D
At trial, Romo-Chavez’s defense was that he was unaware
that the drugs were in his car. He asserted that Vargas-Diaz,
who helped him purchase his car and then helped to arrange
repairs of the broken sensor, must have surreptitiously
installed the secret compartment while the car was in the
shop. Romo-Chavez testified that he was going to Phoenix
primarily to inquire about enrolling in an online MBA pro-
gram offered by the University of Phoenix. He said that
returning the shirts was only a secondary goal and that he also
wished to repair a crack in his windshield. He claimed that he
would have been able to corroborate his story using certain
personal items located in his car, particularly his cellular tele-
phone, if only the government had preserved them. He
attempted to explain away any apparent inconsistencies in his
story as a result of Officer Hernandez’s allegedly poor trans-
lation.
After a five-day trial, the jury convicted Romo-Chavez on
all counts. Romo-Chavez timely appeals.
II
On appeal, Romo-Chavez first argues that admission of
Agent Simboli’s account of what Romo-Chavez said during
5684 UNITED STATES v. ROMO-CHAVEZ
the interview on the border violated both the rule against hear-
say and the Confrontation Clause. The government counters
that because Officer Hernandez served merely as a language
conduit, his translations to Officer Simboli should be treated
as Romo-Chavez’s own statements.
A
[1] When an out-of-court statement is offered to prove the
truth of the matter asserted, it is hearsay and generally inad-
missible. Fed. R. Evid. 802. However, a party may introduce
the out-of-court statements of his opponent as party admis-
sions. Fed. R. Evid. 801(d)(2). Therefore, Romo-Chavez’s
statements were admissible if “the translated statements”
made by Officer Hernandez “fairly should be considered the
statements” of Romo-Chavez. United States v. Nazemian, 948
F.2d 522, 527 (9th Cir. 1991).
[2] Whether statements made through an interpreter should
be considered statements of the original declarant “require[s]
an analysis of the facts on a case-by-case basis.” United States
v. Garcia, 16 F.3d 341, 342 (9th Cir. 1994). Generally, we
consider “the following four factors . . . : (1) which party sup-
plied the interpreter, (2) whether the interpreter had any
motive to mislead or distort, (3) the interpreter’s qualifica-
tions and language skill, and (4) whether actions taken subse-
quent to the conversation were consistent with the statements
as translated.” Id. at 342-43 (citation and internal quotation
marks omitted).
[3] The first factor weighs slightly in favor of Romo-
Chavez. Officer Hernandez was supplied by—indeed was an
employee of—the government. But “[t]he fact that [Her-
nandez] is a government employee does not, by itself, neces-
sarily prevent” his translations from being admissible. United
States v. Sanchez-Godinez, 444 F.3d 957, 960 (8th Cir. 2006);
see also Nazemian, 948 F.2d at 527-28; United States v. Da
Silva, 725 F.2d 828, 832 (2d Cir. 1983). Though never dispo-
UNITED STATES v. ROMO-CHAVEZ 5685
sitive, this factor would have greater weight if Officer Her-
nandez had “acted as both a translator and a federal law
enforcement officer,” by “ask[ing] the types of questions he
‘normally would ask’ in his capacity” as a government agent.
Sanchez-Godinez, 444 F.3d at 960-61. But while Officer Her-
nandez did read Romo-Chavez his Miranda rights off a pre-
printed card, the record indicates that he did not initiate any
of the questions. See id.
[4] The second factor weighs in favor of the government.
The district court found that Officer Hernandez had no motive
to distort the translation, and Romo-Chavez presents no rea-
son why this finding was clearly erroneous. We do not pre-
sume, as Romo-Chavez would have us do, that a public
servant is inherently biased. See United States v. Martinez-
Gaytan, 213 F.3d 890, 892 (5th Cir. 2000); see also Germano
v. Int’l Profit Ass’n, 544 F.3d 798, 802-03 (7th Cir. 2008); Da
Silva, 725 F.2d at 832;3 cf. United States v. Garcia-Martinez,
228 F.3d 956, 961 (9th Cir. 2000).
[5] The third factor, the skill of the translator, also weighs
in favor of the government. Whether an individual speaks a
foreign language with sufficient fluency to act as a translator
in a given situation is a question of fact. Cf. Nazemian, 948
F.2d at 527-28 (treating competence as an issue of fact and
evidence). The evidence establishes that Officer Hernandez
grew up in El Paso speaking Spanish, studied it in school,
spoke it at home with his wife, and conducted interviews in
it on a regular basis.
[6] We are unconvinced by Romo-Chavez’s assertion that
Hernandez was nonetheless incompetent to translate because
3
We note that Romo-Chavez’s only authority for his position is a foot-
note that we have already discounted. Nazemian, 948 F.2d at 527 (disre-
garding the language in United States v. Felix-Jerez, 667 F.2d 1297, 1300
n.1 (9th Cir. 1982), as dicta because it created an overly rigid frame of
analysis).
5686 UNITED STATES v. ROMO-CHAVEZ
he made minor mistakes when asked in court to recite the
Miranda warnings from memory. Both Officer Hernandez
and Agent Simboli testified that they had never attempted to
Mirandize a suspect in any language without the use of a pre-
printed form. We are even less persuaded that his difficulties
translating the technical aspects of a real estate contract when
asked to do so at trial indicate an inability to ask simple ques-
tions about an individual’s purpose in coming to the United
States. Judge Zapata, who “has a degree in Spanish . . . and
[has] spoken Spanish [his] entire life,” said that “he could not
have translated” the contract. As such, the record fully sup-
ports Judge Zapata’s conclusion that Officer Hernandez was
competent to translate Romo-Chavez’s answers about “where
he was going, where he lived . . . those sorts of questions. It’s
not very high level Spanish.”4
Because Romo-Chavez took no action after the translation,
the fourth factor—whether those actions were consistent with
the translated statement—is not relevant in this case. When
evaluating this factor, we look to objective action rather than
a party’s litigation position. See, e.g., Garcia, 16 F.3d at 344
(relying on the delivery of the same amount of drugs dis-
cussed by the translator); Nazemian, 948 F.2d at 528 (a series
of “repeated, lengthy meetings,” indicating that all parties
were content with the quality of the translator). Romo-
Chavez’s post hoc, self-serving denial is insufficient to tip this
factor in his favor.
[7] Taking these factors together, the district court did not
4
We recognize the concurrence’s concerns about Hernandez’s language
abilities, but Judge Zapata was in a far better place to determine what
those abilities were than we are reviewing a cold record. Speculation about
what “Romo-Chavez actually . . . may have” said, post at 5694, does not
demonstrate that Judge Zapata’s factual determination that the officer was
capable of translating these statements was clearly erroneous.
UNITED STATES v. ROMO-CHAVEZ 5687
err in concluding that Officer Hernandez served merely as a
language conduit for Romo-Chavez.5
B
[8] The Sixth Amendment guarantees a criminal defendant
the right “to be confronted with the witnesses against him.”
U.S. Const. amend. VI. However, this right is not implicated
here because Officer Hernandez’s translations are properly
construed as Romo-Chavez’s own statements. Nazemian, 948
F.2d at 525-26. Even if it were, however, it was satisfied by
Officer Hernandez’s appearance at trial. He may not have
remembered the interview, but “ ‘[t]he Confrontation Clause
includes no guarantee that every witness called by the prose-
cution will refrain from giving testimony that is marred by
forgetfulness, confusion, or evasion.’ ” United States v.
Owens, 484 U.S. 554, 558 (1988) (quoting Delaware v. Fen-
sterer, 474 U.S. 15, 21-22 (1985) (per curiam)). All the Con-
frontation Clause requires is the ability to cross-examine the
witness about his faulty recollections. Id.; see also Crawford
v. Washington, 541 U.S. 36, 59 n.9 (2004) (“Finally, we reit-
erate that, when the declarant appears for cross-examination
at trial, the Confrontation Clause places no constraints at all
on the use of his prior testimonial statements.”).
III
[9] Romo-Chavez next challenges the district court’s
refusal to instruct the jury to infer from the government’s
destruction of certain personal property that it would have
yielded evidence harmful to the government. But to warrant
5
Romo-Chavez’s fallback argument relating to the agents’s failure to
record is similarly without merit. Whether or not a recording is made has
no bearing on whether the translator’s statements may be fairly attributed
to the defendant. And as we have routinely said, suppression is not war-
ranted simply because the government fails to record an interview. United
States v. Smith-Baltiher, 424 F.3d 913, 925-26 (9th Cir. 2005).
5688 UNITED STATES v. ROMO-CHAVEZ
such an instruction, a criminal defendant must establish (1)
that the evidence was destroyed in bad faith, and (2) that he
was prejudiced by its destruction. United States v. Artero, 121
F.3d 1256, 1259 (9th Cir. 1997); United States v. Jennell, 749
F.2d 1302, 1308-09 (9th Cir. 1984); accord Arizona v. Young-
blood, 488 U.S. 51, 58 (1988); United States v. Laurent, 607
F.3d 895, 902 (1st Cir. 2010) (stating that an adverse infer-
ence “instruction usually makes sense only where the evi-
dence permits a finding of bad faith destruction; ordinarily,
negligent destruction would not support the logical inference
that the evidence was favorable to the defendant”); Lunnon v.
State, 710 A.2d 197, 199 n.3 (Del. 1998) (adopting a different
rule under state law but describing federal rule as a “bright
line due process test of police bad faith”).
We acknowledge that our standard in civil cases differs
somewhat. But the bad faith requirement, absent from the
general civil standard, exists in criminal cases because it “lim-
its the extent of the police’s obligation to preserve evidence
to reasonable bounds and confines it to that class of cases
where the interests of justice most clearly require it.” Young-
blood, 488 U.S. at 58; see also Illinois v. Fisher, 540 U.S.
544, 547-48 (2004) (per curiam).
[10] As Romo-Chavez concedes, there was no bad faith
shown in this case. Therefore, the district court did not err.
IV
Finally, Romo-Chavez argues that even if he was not preju-
diced by any single error, the cumulative effect of multiple
errors requires reversal. Because the district court committed
no error, Romo-Chavez cannot be entitled to such relief.
United States v. Jeremiah, 493 F.3d 1042, 1047 (9th Cir.
2007).
AFFIRMED.
UNITED STATES v. ROMO-CHAVEZ 5689
BERZON, Circuit Judge, concurring:
I disagree with the majority as to the question whether
Agent Hernandez spoke Spanish well enough that he could
reasonably be viewed in his role as out-of-court translator as
a “conduit” for Romo-Chavez, thereby precluding application
of the hearsay rule with regard to the statements he made to
Agent Simboli. In the context of the rest of the record in this
case, however, the admission of Agent Hernandez’s transla-
tion was harmless. I therefore concur in the result as to the
Nazemian issue. See United States v. Nazemian, 948 F.2d 522(9th Cir. 1991). I also concur in the remainder of the majority
opinion, albeit with the same caveat regarding the survival of
Nazemian after Crawford v. Washington, 541 U.S. 36 (2004),
as I expressed in United States v. Hieng, ___ F.3d ___, No.
09-10401, 2012 WL 1655934 (9th Cir. May 11, 2012) (Ber-
zon, J., concurring).1
I.
The record establishes that Hernandez’s grasp of Spanish
was quite weak — much weaker than the majority opinion
makes it out to be.
1
In Hieng, I state in my concurring opinion that Nazemian is not so
“ ‘clearly irreconcilable’ ” with Crawford, as to permit a three-judge panel
to overrule Nazemian. 2012 WL 1655934, at *11 (Berzon, J., concurring)
(quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)).
In particular, Nazemian places the translator’s version of a statement
beyond the scope of Confrontation Clause analysis altogether, a holding
that would, if correct, seem to survive the fundamental alteration in Con-
frontation Clause analysis wrought by Crawford. Nonetheless, as I explain
in my concurring opinion in Hieng, I am of the view that Nazemian’s
holding does ultimately rest on a pre-Crawford understanding of the unity
between hearsay concepts and Confrontation Clause analysis. See id. at
*15 (Berzon, J., concurring). The notion that a translator’s out-of-court
version of a testimonial statement need not be subject to cross-
examination seems in great tension with Melendez-Diaz v. Massachusetts,
129 S. Ct. 2527 (2009) and Bullcoming v. New Mexico, 131 S. Ct. 2705(2011), which hold that laboratory reports may not be admitted without
testimony by the persons who conducted the laboratory tests. Id.
5690 UNITED STATES v. ROMO-CHAVEZ
For example, although the opinion says that Hernandez
“grew up . . . speaking Spanish,” Hernandez actually testified
that he “grew up listening to Spanish.” In other words, Her-
nandez’s parents spoke to him in Spanish. Many people grow
up with relatives speaking to them in another language, which
they can therefore understand to a degree but not necessarily
speak. See Friedemann Pulvermüller & John H. Schumann,
Neurobiological Mechanisms of Language Acquisition, 44
Language Learning 681, 685 (1994); see also Lily Wong Fil-
more, When Learning a Second Language Means Losing the
First, 6 Early Childhood Res. Q. 323, 324 (1991) (observing
that “[f]ew American-born children of immigrant parents are
fully proficient in the[ir] ethnic language” and that “[o]nce
these children learn English, they tend not to maintain or to
develop the languages spoken at home, even if it is the only
one their parents know”); Merrill Swain, The Output Hypoth-
esis and Beyond: Mediating Acquisition through Collabora-
tive Dialogue, in Sociocultural Theory and Second Language
Learning 97 (James P. Lantolf ed., 2000) (discussing studies
showing that the “output” of language through speaking and
writing is critical to the acquisition of a foreign language).
Further, the opinion leaves the impression that Hernandez
studied Spanish extensively; in fact, he did so only from fifth
to seventh grade and then, again, for two years in high school,
which he completed in the 1980s. Unfortunately, language
teaching and learning in this country are such that this degree
of education in a language is extremely unlikely to lead to any
degree of fluency. See, e.g., Center for Applied Second Lan-
guage Studies, Univ. of Or., What Proficiency Level Do High
School Students Achieve? 2 (2010) (reporting that, after four
years of high school level foreign language instruction in the
United States, fewer than four percent of students achieve an
“intermediate mid”2 level of speaking proficiency).
2
The American Council on the Teaching of Foreign Languages
(ACTFL) has characterized foreign language speakers at the “intermediate
UNITED STATES v. ROMO-CHAVEZ 5691
Similarly, the majority opinion embroiders the record, at
least by implication, when it says that Hernandez spoke Span-
ish at home with his first and second wives. Hernandez did
testify that both of his wives spoke Spanish, and that he
speaks Spanish daily in his personal life. But he also testified
that both of his wives spoke English too, and that he could
“communicate very easily” with them in English. It is thus
unclear whether Hernandez’s “daily” use of Spanish at home
consisted of a few words or phrases a day, or whether he
spoke Spanish extensively with his wives. His demonstration
of his Spanish abilities at the trial, discussed below, suggests
the former.
No more convincing as to Hernandez’s fluency in Spanish
is the majority’s statement that Hernandez conducted inter-
views in Spanish on a regular basis. In fact, Hernandez testi-
fied that he had conducted only around 20 investigative
interviews for border agents, of the type at issue here, in the
past three years. Hernandez’s main use of Spanish at work
consisted instead of taking sworn statements, including “bio-
graphical questions and such,” while processing non-U.S. citi-
zens at the passport control station at the border. Given the
disparate contexts of passport control and criminal interroga-
tion, it is difficult to see how Hernandez’s experience in tak-
ing sworn statements adequately equipped him with the
Spanish language skills necessary to interpret Agent Sim-
boli’s interrogation of Romo-Chavez. Moreover, there is no
indication in the record as to the accuracy with which Her-
mid” level as those capable of “handl[ing] successfully a variety of
uncomplicated communicative tasks in straightforward social situations,”
whose “[c]onversation is generally limited to those predictable and con-
crete exchanges necessary for survival in the target culture,” who “have
difficulty linking ideas, manipulating time and aspect, and using commu-
nicative strategies” when called on to perform functions or handle topics
at the advanced level, and who “are generally understood by sympathetic
interlocutors accustomed to dealing with non-natives.” Am. Council on
the Teaching of Foreign Lang., ACTFL Proficiency Guidelines 7 (2012).
5692 UNITED STATES v. ROMO-CHAVEZ
nandez either translated interrogations or took sworn state-
ments.
Hernandez’s trial testimony confirmed that his command of
Spanish was far from dependable. Quite aside from the
request that he recite from memory the Spanish version of
Miranda warnings — a task that did not necessarily depend
on language proficiency,3 as the majority notes — Hernandez
was asked to translate in court a short (around 60-word)
“waiver of rights” from the ICE Miranda form that he had
gone over with Romo-Chavez. His translation was then com-
pared with that of the court interpreter. The two translations
were generally consistent, but were inconsistent in some ways
that could matter when reporting what a potential criminal
defendant said about his activities.
For example, the court interpreter translated the phrase “me
han leido” as “they have read to me,” whereas Hernandez
translated it is “I have read.” Obviously, such a transposition
of subject and object could matter mightily when a suspect is
giving his story in reponse to questioning. Similarly, Her-
nandez translated a phrase as “I sign this document,” whereas
the interpreter translated it as “I have signed this document.”
As with the subject/object error, this kind of verb tense mis-
take is one that someone with a good grasp of Spanish should
not be making. Moreover, it is again the kind of error that
could result in a suspect being represented as having told one
story whereas in fact he told another, with a material discrep-
ancy between the two.
3
Nonetheless, Hernandez did make mistakes that reflected on his Span-
ish abilities while attempting to perform this task. For example, he trans-
lated the word “questions” as “preguntos” rather than “preguntas,” thereby
mistaking the gender of the noun. Such an error is not necessarily innocu-
ous. For example, the Spanish term “derecha” means “right,” as in the
opposite of “left,” whereas the term “derecho” means “right,” as in a
human right or constitutional right. See Oxford Spanish Dictionary 256
(3d ed. 2003).
UNITED STATES v. ROMO-CHAVEZ 5693
Nor were these errors momentary lapses. Hernandez testi-
fied that he didn’t know “the grammar rules for application to
the Spanish language.” He also indicated that he relied on his
wife for help with tenses when trying to complete sentences.
For instance, she would correct him if he confused the phrase
“I wanted to go” with “I went.”
While Hernandez testified that he “more commonly” made
mistakes in verb tense, the cross-examination revealed that his
Spanish vocabulary also had significant limitations. At one
point, for example, Romo-Chavez’s attorney asked Hernandez
to translate four sentences from Spanish to English, which the
court interpreter subsequently translated as, “I am Juan
Dominquez. I live there near Phoenix. I’m going on a trip for
pleasure and business. But in this business I had an accom-
plice that already gave a statement.” Hernandez was able to
translate only the first two sentences. Explaining his inability
to translate the third and fourth sentences, Hernandez stated,
“I have never heard those words before.” Translation is an
exacting task, for which professional translators train for
many years. See generally Bureau of Labor Statistics,
Interpreters and Translators, in Occupational Outlook Hand-
book (2010-11 ed.), http://www.bls.gov/oco/pdf/ocos175.pdf.;
Developing Professional-Level Language Proficiency (Betty
Lou Leaver & Boris Shekhtman eds., 2002). Even fully com-
petent translators and interpreters disagree about the proper
transformation of one language into another; that is why there
are over ten translations of War and Peace, for example,
listed for sale by Amazon. While we need not hold that an
out-of-court translator must be qualified to be a court inter-
preter — or a translator of novels — to meet the Nazemian
standard, some high degree of reliability is necessary. The
very concept of a “conduit” — especially where the defendant
had nothing to do with choosing the translator — suggests
accuracy, if not elegance, in converting what the defendant
said in one language to another. Where the interpreter’s back-
ground and tested proficiency does not confirm the capacity
for such accuracy, the entire premise on which Nazemian
5694 UNITED STATES v. ROMO-CHAVEZ
stands — shaky though it may be with regard to the Confron-
tation Clause after Crawford, 541 U.S. 36, see Hieng, 2012
WL 1655934, at *15 (Berzon, J., concurring) — collapses.
Romo-Chavez testified that he understood only 30-40% of
what Hernandez said to him, which would have consisted pri-
marily of Miranda warnings and questions. Of course, there
is ample reason to think this estimate self-serving. But even
if Hernandez’s accuracy, or comprehensibility, was much
higher, there could easily have been mistakes in translation
concerning grammar and verb tense that mattered.
For example, with respect to the question of where Romo-
Chavez planned to exchange the two shirts, Simboli testified
that Hernandez told him that Romo-Chavez first said Phoenix
but then changed his answer to the Tucson Mall. However,
what Romo-Chavez actually said may have been that he
would have gone to the Tucson Mall had he not had other
business in Phoenix. Alternatively, he might have said that he
had been to the Tucson Mall before (which, as Romo-Chavez
testified during trial, he had been) but was going near Phoenix
this time.4 Of course, we don’t know that he said either one,
but the sorts of verb tense errors we know Hernandez did
make could lead to such mistakes.
Similarly, even a subtle misuse of vocabulary could have
mattered here. For example, Simboli testified that, in response
to a question he did not quite remember, Romo-Chavez told
him, “Everything in the car is mine.” In contrast, Romo-
Chavez testified that he told Simboli, through Hernandez,
only that the clothes and documents in the car were his.
Whereas Simboli may have intended to ask whether Romo-
Chavez acknowledged ownership of everything in the entire
car (that is, including the gas tank), the question that Her-
nandez posed to Romo-Chavez, given Hernandez’s word use
4
Romo-Chavez agreed that he “went to a place near Phoenix, Scotts-
dale,” and that he was “going to go to Dillard’s in Scottsdale.”
UNITED STATES v. ROMO-CHAVEZ 5695
difficulties, may actually have been whether he owned every-
thing inside the car—that is, the interior cabin. Such a dis-
crepancy could constitute the difference between a seeming
confession and an innocuous admission.
I explained in my concurrence in Hieng that Nazemian
should be reconsidered en banc in an appropriate case with
regard to its Confrontation Clause holding. See 2012 WL
1655934, at *15 (Berzon, J., concurring). But, as this case
illustrates, Nazemian will retain importance as a hearsay pre-
cedent even if it is determined that the Confrontation Clause
requires that the interpreter be available for cross-
examination. Here, Hernandez was available for cross-
examination and was extensively cross-examined. He did not,
however, remember any details of this particular interpreta-
tion session, as is understandable and as will often be the
case. As the majority holds, the Confrontation Clause is satis-
fied by the opportunity to cross examine, even if the person
examined does not remember enough to be useful. Maj. Op.
at 5687. So, in this species of case, it is often compliance with
the Nazemian requisites—particularly, enough language com-
petence that the interpreter’s statements can be viewed as
those of the suspect (or other interviewee)—that will be the
protection against inaccurate translation prejudicial to the
defendant.
Obviously, precisely because the defendant does not know
English, he is in no position to judge the accuracy of the
translation at the time it is occurring. Where, as here, his
defense at trial is, in part, that he did not say during the out-
of-court interview what the translator says he said, some
meaningful assessment of the language competence of the
translator is essential. Hernandez was not sufficiently compe-
tent that he could be viewed as a “conduit” such that his state-
ments could be taken as those of Romo-Chavez, eliminating
what would otherwise be a hearsay problem. Indeed, Her-
nandez conceded at trial that he did not consider himself to be
fluent in Spanish.
5696 UNITED STATES v. ROMO-CHAVEZ
One additional note: It does not seem to me to be too much
to ask to require that the Department of Homeland Security
(DHS) have competent, trained interpreters available at the
border to interview suspects (and others), at least in Spanish.
Or, better, DHS could record all the interrogations, so that the
actual interchange can be available to the parties and the jury
(with the help of certified interpreters). Alternatively, law
enforcement can wait to interview arrested suspects until there
is a competent intermediary available. Here and in many other
instances, what was found in the car was sufficient to estab-
lish probable cause and therefore to arrest Romo-Chavez;
there was no exigent reason to interview him before a compe-
tent interpreter could be found.
Errors in translation do occur, and can be critical. See, e.g.,
Grigoryan v. Mukasey, 277 Fed. Appx. 742, 744 (9th Cir.
2008) (granting a motion to reopen an alien’s removal pro-
ceedings, where a hearing transcript incorrectly stated that
“[the alien] testified to being attacked because her mother was
a ‘cook’ rather than a ‘Turk,’ ” an error that went to “the heart
of her claim” of having been persecuted based on a protected
ground). This court has recognized that “an incorrect or
incomplete translation is the functional equivalent of no trans-
lation.” Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir.
2000). We should not bend the hearsay rules out of shape so
as to treat statements by one person as if they were statements
by another, unless the equivalence is proven. Here, it was not.
II.
In the end, however, I would hold the error in admitting
Hernandez’s hearsay statements in this case to be harmless
error, for three reasons.
First, Agent Simboli’s testimony of what Romo-Chavez
said, via Hernandez’s translation, did not contain any specific
admission from Romo-Chavez that he knew of the drugs in
the gas tank. Instead, the government used Simboli’s testi-
UNITED STATES v. ROMO-CHAVEZ 5697
mony only to attack through contradictions the story Romo-
Chavez told at trial. And much of what Agent Simboli
reported that Romo-Chavez told him — or did not tell him —
via Hernandez was similar to what two other border agents,
Agents Tipling and Aldrich, who separately spoke to Romo-
Chavez, reported. Romo-Chavez does not challenge Agent
Tipling’s or Agent Aldrich’s reports of what he said in Span-
ish as hearsay. Both officers, like Agent Simboli, for whom
Hernandez translated, testified to statements that contradicted
Romo-Chavez’s story at trial.
Moreover, Romo-Chavez’s story at trial changed drasti-
cally during cross-examination, as he was confronted with
evidence concerning his ongoing relationship with Vargas-
Diaz, the individual who, according to Romo-Chavez’s testi-
mony, must have placed the drugs in the car he drove across
the border. For example, Romo-Chavez initially testified that
he ran into Vargas-Diaz only one time, by coincidence, in
Nogales. Later, however, he admitted to meeting Vargas-Diaz
in Nogales between six to eight times. Similarly, Romo-
Chavez at first claimed to have never called Vargas-Diaz, but
subsequently said that he had called him about three times. At
the outset, Romo-Chavez also said that the two ran into each
other by coincidence at the Tucson Mall, but he later admitted
that Vargas-Diaz knew that he would be there, because the
men had spoken beforehand by phone.
The government also introduced extensive evidence that
Romo-Chavez and Vargas-Diaz drove the same two cars
across the border at different times. Romo-Chavez made a
total of about thirteen trips across the border in those two cars,
while Vargas-Diaz made a total of about twelve trips. In addi-
tion, the government presented evidence that the two men
crossed the border simultaneously approximately thirteen
times, evidence inconsistent with Romo-Chavez’s representa-
tions that he knew Vargas-Diaz very casually and had no role
in any cross-border transactions in which he engaged.
5698 UNITED STATES v. ROMO-CHAVEZ
Given these aspects of the record, as well as the basic fact
that drug smugglers are unlikely to entrust hundreds of thou-
sands of dollars of drugs to an unknowing driver, cf. United
States v. Toro-Barboza, Nos. 10-50487, 10-50491, 2012 WL
833905, at *4 (9th Cir. Mar. 14 2012), the jury likely would
have disbelieved Romo-Chavez’s version of events even
without the report of Simboli’s interrogation. If they did, then
there was ample evidence from which the jury could have
inferred that Romo-Chavez was working with, rather than
duped by, Vargas-Diaz, whom he identified as the source of
the car and of the drugs.
Finally, Romo-Chavez had ample opportunity to cross-
examine Hernandez as to his language competence. Given the
lack of competence Hernandez both displayed and admitted
to, the likelihood that the jury put much credence in Simboli’s
report, as opposed to all the other evidence, is quite low.
Critically, the Nazemian error was an evidentiary one only,
not of constitutional dimensions. So the government’s harm-
less error burden is only to show it is more likely than not that
the same result would have been reached absent Agent Sim-
boli’s report of his interrogation of Romo-Chavez. See United
States v. Gomez-Flores, 418 F.3d 1093, 1099 (9th Cir. 2005).
In combination, the strength of the government’s circumstan-
tial evidence, the many other reasons that the jury had for dis-
believing Romo-Chavez’s testimony, and the effective cross-
examination of Hernandez regarding his Spanish competence,
more than meet the government’s burden of demonstrating
that the evidentiary error was harmless.
Conclusion
For the reasons I have explained, I concur only in the result
with regard to the Nazemian issue.
The district court characterized the competence of the
translator as “marginal.” I believe even that begrudging char-
UNITED STATES v. ROMO-CHAVEZ 5699
acterization to be clearly erroneous, for the reasons I have
given. But even if not clearly erroneous, the district court’s
assessment of Hernandez’s ability as an interpreter is surely
one as to which another district judge could have ruled other-
wise without committing clear error. Thus, if DHS continues
to provide translators who are untrained, untested, and of, at
best, “marginal” competence, and also continues not to record
interrogations involving an interpreter, it will be unnecessarily
risking the validity of the resulting convictions.