U.S. v. Huang, s. 1166-1169

• Decision Date: 03 April 1992
• Docket Number: D,Nos. 1166-1169,s. 1166-1169
• Citation: 960 F.2d 1128
• Parties: UNITED STATES of America, Appellee, v. Mike HUANG, John Chu, Paul Park, and Kwan Yue Cheoi, Defendants-Appellants. ockets 92-1035 through 92-1038.
• Court: U.S. Court of Appeals — Second Circuit

Page 1128

960 F.2d 1128

UNITED STATES of America, Appellee, v. Mike HUANG, John Chu, Paul Park, and Kwan Yue Cheoi,

Defendants-Appellants.

Nos. 1166-1169, Dockets 92-1035 through 92-1038.

United States Court of Appeals,

Second Circuit.

Argued Feb. 20, 1992.

Decided April 3, 1992.

J. Gilmore Childers, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty. for the Southern District of New York, Daniel C. Richman, Asst. U.S. Atty., on the brief), for appellee.

Sandy Hom, New York City, submitted a brief for defendant-appellant Mike Huang.

David H. Weiss, New York City, for defendant-appellant John Chu.

Abraham L. Clott, New York City (Leonard F. Joy, The Legal Aid Soc., Federal Defender Services Appeals Unit, on the brief), for defendant-appellant Paul Park.

Austin V. Campriello, New York City, (Michael D. Mabry, Werner & Kennedy, on the brief), for defendant-appellant Kwan Yue Cheoi.

Before: VAN GRAAFEILAND, KEARSE, and MAHONEY, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Mike Huang, John Chu, Paul Park, and Kwan Yue Cheoi appeal from an order of the United States District Court for the Southern District of New York,

                Robert P. Patterson, Jr., Judge, entered upon declaration of a mistrial, denying their motions to bar retrial and dismiss the indictment against them on the ground that a retrial would violate their rights under the Double Jeopardy Clause of the Constitution.   The district court declared the mistrial upon the motions of Huang and Chu and over the objections of Park and Cheoi, on the ground that one of the translators at trial was not a properly certified interpreter under the federal Court Interpreters Act, 28 U.S.C. §§ 1827, 1828 (1988).   On appeal, Park and Cheoi contend that there was no need for a mistrial and that, having objected to the mistrial, they may not be retried without violation of their rights to be free of double jeopardy.   Huang and Chu contend that, notwithstanding their motions for mistrial, they should not be retried because the need for the mistrial was created by the court and the government.   For the reasons below, we affirm the denial of the double jeopardy motions of Huang and Chu, and we reverse the denial of the motions of Park and Cheoi
                

I. BACKGROUND

In October 1991, defendants were charged with, inter alia, conspiracy to kidnap one Chen Han Ying ("Chen"), in violation of 18 U.S.C. § 1201(c) (1988); kidnaping Chen, in violation of 18 U.S.C. §§ 1201(a)(1) and 2 (1988); and interstate travel in aid of racketeering, in violation of 18 U.S.C. §§ 1952 and 2 (1988). Trial commenced in January 1992; the presentation of evidence began on January 15. Chen was the government's first witness.

On direct examination, Chen testified that on September 25, 1991, he had been forcibly abducted from his home in New Jersey and held for ransom by a group of armed men that included Huang, Chu, and Cheoi. Chen was taken to an apartment in New York City, where he was repeatedly beaten by several men, including Chu, Park, and Cheoi. Chen testified that he was also cut with a knife, burned with red-hot metal, and threatened with a snake. He eventually succumbed to defendants' ransom demands and arranged for $12,000 to be paid. His captivity ended two days after his abduction, when law enforcement agents rescued him and arrested defendants.

On cross-examination, Chen was forcefully challenged by counsel for all four defendants, who attacked, inter alia, his identification of defendants and various details of his direct testimony. They sought to impeach him with statements he had made before a New York State grand jury and statements he had made in a pretrial identification hearing held in the present case.

In connection with the prosecution, each of the defendants had requested and received the services of an interpreter. Huang's primary language was the Fu-Zhao dialect of Chinese; Chu and Park spoke Korean; and Cheoi's primary language was the Cantonese dialect of Chinese. Chen testified in the Mandarin dialect of Chinese, and most of his testimony was translated at trial by Laura Ho, a per diem employee of the United States Attorney's office who had been certified by the Southern District Court Interpreters Office as qualified to interpret court proceedings. On January 23, the government arranged for one Arthur Kwok to substitute occasionally for Ho. Kwok, who had been an interpreter in the New York State court system for some three years, had not been certified by the Court Interpreters Office as qualified to interpret in federal court. Kwok shared with Ho the translation duties during the latter part of the cross-examination of Chen, which ended on Friday afternoon, January 24.

At the start of proceedings on Monday, January 27, the trial court announced that it had received a call from the Court Interpreters Office, reporting that as to portions of Chen's cross-examination, Kwok had been summarizing, rather than giving a verbatim translation. Huang and Chu promptly moved for a mistrial:

MR. WEISS [Attorney for Chu]: Mr. Chu's application is for a mistrial. I don't know any way that we can restore his right to an accurate confrontation with the witness. If we put the witness back on the stand and try to confront THE COURT: Rest of you join in that?

                him with what he testified to earlier he can always say it was the interpreter that was wrong.   I think it's tainted the proceeding
                

MR. HOM [Attorney for Huang]: I do.

....

MR. WEISS: Judge, I just want to add to what my thinking is so the record is clear. Our strategy, to a great extent, relied on the witness' prior statements to the grand jury in debriefing, ... and the witness claimed that's not what he said. So now we have the jurors alerted that there are, in fact, problems with translators which further impairs his defense....

(Trial Transcript ("Tr.") 719-21.) Park and Cheoi initially did not join the mistrial motion:

MR. CAMPRIELLO [Attorney for Cheoi]: Your Honor, Mr. Choi [sic ] and I have elected to proceed and not to join in this motion. However, I don't want there to be any indication to this jury that there's any problem whatsoever with these interpreters for the reason Mr. Weiss just articulated. That's the testimony, I have to live with it, the government has to live with it, the jury has to live with it.

MR. JOY [Attorney for Park]: It is also Mr. Park's wish to continue under the same conditions, that no mention be made to the jury as to what problems there are or aren't in the translation.

(Tr. 721.) Upon learning that not only had the interpreter limited his translations of long answers to summaries, but that the interpreter was an employee not of the court but of the United States Attorney's office, Cheoi's attorney took the position that Cheoi was entitled to a mistrial on that dual basis; but he stated that his motion was a conditional one for a mistrial "with jeopardy attached. And if the court is not going to give me jeopardy, I don't want the mistrial. But I think I'm entitled to a mistrial and a mistrial with jeopardy." (Tr. 723.) Cheoi's attorney explained his position as follows:

MR. CAMPRIELLO: ....

....

.... We did not know, we had no reason to know, we had no reason to inquire, we had no reason to do anything. And then we find ourselves in this pickle, and I don't think this trial can go better for my client the second time around because Mr. Chen now has been subjected to extensive cross-examination. He knows exactly how we're going to handle him. He knows exactly where the problems are. We will never have another kind of what I perceive as a misidentification we had in the courtroom two weeks ago....

The case can't go better for my client. And through no fault of his own, we've been put in this position. So I want a mistrial only with jeopardy attached on the dual grounds that have been articulated focusing, in large measure, on the fact that the government put an interpreter in here without our knowledge. If I can't have jeopardy, I don't want the mistrial. But I want the mistrial with jeopardy.

(Tr. 723-24.) Park promptly joined that position.

The court asked the interpreters who were present in the courtroom and had been there during Kwok's translations whether, in their views, Kwok had been careful in interpreting and whether he had been summarizing rather than translating word for word. Ho responded that as to "[c]ertain parts when the answer was very long, I thought that the interpretation should be more detailed. At times, he sort of digested and summarized, but most of the main points were touched upon." (Tr. 728.) Another translator stated, "When the witness testified in short sentences, I think he did a very good job. But when he talked in a few sentences, I know for a fact that he summarized." (Id.) A third translator stated, "Your Honor, I join in what the others have said. I only want to add that there were certain sections where, certain rounds when he was on when he was almost flawless and then there was one round, I remember specifically, that he was summarizing." (Tr. 728-29.)

The Assistant United States Attorney ("AUSA") indicated that the government had not known when it hired Kwok that he had not been certified by the Court Interpreters Office. The government took the position that there had been substantial compliance with the Court Interpreters Act ("Act") and that Kwok's performance had not been deficient:

MR. CHILDERS [AUSA]: Your Honor, having looked at a couple of cases, it's the government's position that there was substantial compliance with the [A]ct, and that there has not been--

....

[United States v. Gomez, 908 F.2d 809 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 699, 112 L.Ed.2d 689 (1991) ] talks about the interpreter's act and it talks about the preference for word-for-word translation, but it also talks about minor deviations from that, does not create an infirmity.

....

THE COURT:--I'm not sure, no one...