United States v. Carrion, 72-1243.

• Citation: 488 F.2d 12
• Decision Date: 29 November 1973
• Docket Number: No. 72-1243.,72-1243.
• Parties: UNITED STATES of America, Appellee, v. Orlando Vasquez CARRION, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

488 F.2d 12 (1973)

UNITED STATES of America, Appellee, v. Orlando Vasquez CARRION, Defendant, Appellant.

No. 72-1243.

United States Court of Appeals, First Circuit.

Heard November 6, 1973.

Decided November 29, 1973.

Certiorari Denied April 1, 1974.

Edwin P. Whittemore, Boston, Mass., by appointment of the Court, with whom Robert M. Cove, was on brief, for defendant, appellant.

Robert B. Collins, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

Certiorari Denied April 1, 1974. See 94 S.Ct. 1613.

PER CURIAM.

Appellant, convicted of knowingly aiding and abetting the distribution of heroin in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2, contends that his Fifth and Sixth Amendment rights were abridged during trial because (1) the court allowed into evidence impermissible and prejudicial hearsay, (2) appellant was denied effective assistance of counsel, and (3) the court refused to appoint an interpreter for him.

The first claim is clearly lacking in merit. Even assuming that the statements were not admissible under the theory of joint venture, the court granted a motion to strike them and gave careful instructions to disregard them. Therefore, we think it unlikely that the jury relied upon the questioned extra-judicial statements in determining appellant's guilt, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We also find the second claim to be frivolous, since counsel's failure to call an alibi witness to the stand may have been motivated by strategic considerations. Appellant's third contention, however, deserves more attention, particularly in light of scarce judicial authority on the right to a court-appointed interpreter and the possible confusion which might attend this subject in the future.

Appellant is a foreign-born national with a limited ability to speak and comprehend English. He claims that, although he admitted to the court some ability to communicate and understand, his counsel's assertion at the start of the trial of the possibility of a "problem of communication" should have prompted the court to hold a special hearing to determine the extent of the problem. As evidence of his difficulty with the language, appellant points to several instances during his own testimony where questions had to be repeated or where his responses were so unclear as to require that he rephrase them. On at least one occasion the court indicated that there was apparently a "language barrier".

The necessity for an interpreter to translate from a defendant's native language into English when the defendant is on the stand, and from English into the defendant's native language when others are testifying, has been elevated to a right when the defendant is indigent and has obvious difficulty with the language, Negron v. New York, 310 F.Supp. 1304 (E.D.N.Y.1970), aff'd, 434 F.2d 386 (2d Cir. 1970); cf. Gonzalez v. People of Virgin Islands, 109 F.2d 215 (3d Cir. 1940). Clearly, the right to confront witnesses would be meaningless if the accused could not understand their testimony, and the effectiveness of cross-examination would be severely hampered. Terry v. State, 21 Ala.App. 100, 105 So. 386, 387 (1925); cf. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1962). If the defendant takes the stand in his own behalf, but has an imperfect command of English, there exists the additional danger that he will either misunderstand crucial questions or that the jury will misconstrue crucial responses. The right to an interpreter rests most fundamentally, however, on the notion that no defendant should face the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment.

Yet how high must the language barrier rise before a defendant has a right to an interpreter? It is well settled that there is no right to an interpreter if the foreign-born defendant speaks fluent English and is "completely aware of all the proceedings". Cervantes v. Cox, 350 F.2d 855 (10th Cir. 1965). The status of the right becomes less certain, however, where, as in the present case, the defendant has some ability to understand and communicate, but clearly has difficulty.

Because the determination is likely to hinge upon various factors, including the...