Circuit Split: Division Noted Again On "Language Conduit" Theory For Interpreters Under Confrontation Clause

In another challenge under the Confrontation Clause to the admission of foreign language transcripts prepared by a non-testifying interpreter, the Eleventh Circuit concludes there was no violation where one of the participants to the recorded conversations testified about the accuracy of the transcript; circuit reconfirms split on whether a "language conduit" theory may be applied under the Confrontation Clause, in United States v. Curbelo, 726 F.3d 1260 (11th Cir. Aug. 9, 2013) (No. 10-14665)

The Federal Evidence Blog recently noted a circuit split on whether the "language conduit" theory may apply to statements or transcripts of a non-testifying interpreter under the Confrontation Clause. See Rejecting "Language Conduit" Theory For Interpreters Under The Confrontation Clause. The Eleventh Circuit recently revisited this issue.

Trial Proceedings

In the case, defendant Curbelo was charged with conspiring and manufacturing counts related to his role in manufacturing marijuana inside some residence. At trial, the jury heard wire-tapped recordings of co-conspirator Diaz which had been intercepted during the investigation. The jury was provided with transcripts to follow the Spanish portions of the communications. The transcripts were prepared by interpreters who did not testify. Instead Diaz, a participant to the recorded communications who spoke and read English and Spanish, authenticated the recordings and transcripts. The trial court overruled the objection that the defendant was unable to cross-examine the individual “who translated the records” under the Confrontation Clause. After the defendant was convicted as charged, he appealed the introduction and use of the transcript of the recordings.

Circuit Analysis: Transcript Authentication

The Eleventh Circuit affirmed the admission of the transcripts. First, the transcripts were properly authenticated under FRE 901(a) by Diaz who was a participant to the communication. As the circuit explained:

Here, Diaz testified that he was fluent in both Spanish and English, was able to read both languages, had listened to the wiretap recordings, and believed the translated transcripts accurately reflected the recorded conversations. Because Diaz had himself been a party to each of the conversations, he was in an excellent position to authenticate the transcripts.

Curbelo, 726 F.3d at 1271 (citing United States v. Hogan, 986 F.2d 1364, 1376 (11th Cir. 1993) (“each transcript was authenticated by either a party to the telephone conversation or meeting to which it pertains or someone who had monitored the recorded conversation”)). The circuit also suggested that the defendant may have waived any authentication challenge based on his failure to produce his own version of the contested transcript. Curbelo, 726 F.3d at 1271 (citing United States v. Le, 256 F.3d 1229, 1238 (11th Cir. 2001) (failure to comply with the established procedure to authenticate and challenge transcripts waived any challenge on appeal) (citations omitted)). However, even if the issue had not been waived, the transcripts were sufficiently authenticated.

Confrontation Clause: Admissibility Of Recorded Statements

The circuit considered the admissibility of the recorded statements under the Confrontation Clause. There was no Confrontation Clause violation in admitting Diaz’s recorded statements since he testified about them and was subject to cross-examination. (citing Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (“the Confrontation Clause places no constraints at all on the use of” a witness’s “prior testimonial statements” which were subjected to cross-examination at trial). Further, the introduction of the defendant’s recorded statements against him did not violate the Confrontation Clause. Curbelo, 726 F.3d at 1272 n.7 (citing United States v. Brown, 441 F.3d 1330, 1358–59 (11th Cir. 2006) (a statement against a party opponent does not violate the Confrontation Clause) (citing other cases)).

Other recorded statements were not “testimonial” under the Confrontation Clause since none of “the three men had no reason to believe their conversations ‘would be available for use at a
later trial.’” Curbelo, 726 F.3d at 1272 (quoting Crawford, 541 U.S. at 52). Consequently, all of the recorded statements were admissible under the Confrontation Clause.

Confrontation Clause: Admissibility Of Transcript

The question then turned to whether the transcripts constituted “testimonial statements” under the Confrontation Clause. The circuit assumed that the transcript statements by the interpreter were “testimonial,” a point the government conceded at oral argument. Curbelo, 726 F.3d at 1274 (citing Crawford, 541 U.S. at 51–52 (characterizing as testimonial “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial”)).

However, the testimonial statements did not violate the Confrontation Clause. As the circuit explained:

The transcripts can only be testimonial to the extent they reflect the translator’s statement (implicit here) that the English translation accurately reflects the Spanish conversation. Yet this is exactly what Diaz—a participant in the conversations—testified to based on his independent review of the recordings and transcripts. In fact, the anonymous translator’s implicit statement was never admitted at trial. The only statement the jury heard regarding the transcripts’ accuracy came from Diaz. Thus, even if the translator made a testimonial statement out of court, he or she did not become a “witness against” Defendant at trial. Of course, the transcripts were the translator’s work product, not Diaz’s. But Diaz testified to his own judgment that the transcripts were accurate, not to the translator’s judgment.
...
To be sure, Diaz did not start from scratch in translating the conversations. So it was not a retest in the sense that a new blood test would be. But Diaz did not need to sit down with pencil and paper and start the translation process anew. Just because the translator worked on the transcript did not taint it constitutionally.
...
In short, because Diaz, not the original translator, was the “witness[] against” Defendant under the Sixth Amendment, the admission of the transcripts
through Diaz’s testimony did not violate the Confrontation Clause.

Curbelo, 726 F.3d at 1276 (citing United States v. Sardinas, 386 F. App’x 927, 942 (11th Cir. 2010) (unpublished) (no plain error in admitting audio and video recordings in Spanish which were prepared by others but confirmed by a bilingual agent who testified at trial)).

Circuit Split On Language Conduit Theory

The Eleventh Circuit also noted its recent rejection of the language conduit theory "in the Confrontation Clause context." Curbelo, 726 F.3d at 1273 n.9 (citing United States v. Charles, 722 F.3d 1319 (11th Cir. July 25, 2013) (No. 12-14080)). The panel noted a contrary position by other circuits: "Two of our sister circuits have applied the 'language conduit' rule to conclude that an oral interpreter’s statements are really statements of the speaker for purposes of the Confrontation Clause." Curbelo, 726 F.3d at 1273 n.9 (citing United States v. Orm Hieng, 679 F.3d 1131, 1139 (9th Cir. 2012) (“A defendant and an interpreter are treated as identical for testimonial purposes if the interpreter acted as a ‘mere language conduit’ or agent of the defendant.”) (quoting United States v. Nazemian, 948 F.2d 522, 528 (9th Cir. 1991); United States v. Martinez-Gaytan, 213 F.3d 890 (5th Cir. 2000) ("We have held that except 'in unusual circumstances, an interpreter is no more than a language conduit and therefore his translation does not create an additional level of hearsay.'"; "adopt[ing] the reasoning" of the Second and Ninth Circuits) (quoting United States v. Cordero, 18 F.3d 1248, 1252 (5th Cir. 1994) (quoting United States v. Lopez, 937 F.2d 716, 724 (2d Cir. 1991) (internal quotation marks omitted)).

As the Federal Evidence Blog recently noted, the Fourth Circuit last month also aligned itself with the "language conduit" theory. See United States v. Shibin, 722 F.3d 233 (4th Cir. July 12, 2013) (No. 12-4652); see also Prior Inconsistent Statements Provided Through An Interpreter Were Admissible Under The Confrontation Clause; Rejecting "Language Conduit" Theory For Interpreters Under The Confrontation Clause.

Summary

In the past several weeks, three cases have been reported by the circuits on the admissibility of statements or transcripts of non-testifying interpreters. The Curbelo case provides another option to authenticate and admit transcripts which are verified, but not prepared, by a participant to the conversation. The case also notes again the circuit split on the "language conduit" theory under the Confrontation Clause.

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