Ko v. US
| Decision Date | 08 May 1997 |
| Docket Number | No. 93-CF-1322.,93-CF-1322. |
| Citation | 694 A.2d 73 |
| Parties | Kim Long KO, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Roy W. Krieger, Silver Spring, MD, appointed by the court, for appellant.
Gregg A. Maisel, Assistant United States Attorney, with whom J. Ramsey Johnson, Acting United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and John Armon Beasley, Jr., Assistant United States Attorneys, were on the brief, for appellee.
Before SCHWELB and REID, Associate Judges, and MACK, Senior Judge.
The judgment is affirmed for the reasons stated in the concurring opinion of Judge Schwelb, except that a majority of the court does not adopt the discussion in Parts III-B. and III-C. (4) of Judge Schwelb's opinion regarding the question whether the trial judge failed to comply with D.C.Code §§ 31-2704, -2711, and -2712 (1993). As to the interpretation of those provisions, the judgment is affirmed for the reasons stated in the concurring opinion of Judge Reid, with whom Judge Mack joins. Specifically, a majority of the court holds that there was error in these respects, but not plain error. Judge Schwelb would hold only that there was no plain error.
Affirmed.
Kim Long (Peter) Ko was convicted by a jury of extortion,1 threats,2 and unlawful possession of ammunition.3 Ko was acquitted of a number of other charges, including kidnapping while armed, two counts of assault with a deadly weapon, possession of a firearm during a crime of violence, and conspiracy. Ko's codefendants, Sun Kin (Sonny) Chan and Wai Kin (Simon) Chow, were found not guilty of all charges.
At the trial, which lasted over three weeks, fourteen different witnesses who used the Cantonese, Mandarin or Fukinese dialects testified through interpreters. Ko's principal contention on appeal is that the interpreters were not properly qualified and that some of them lacked the requisite impartiality. Ko points out, in particular, that several interpreters were paid by the United States Attorney's office, which was prosecuting the case against him. Ko claims that the asserted irregularities with respect to the use of interpreters deprived him of rights protected by the District's Interpreters for Hearing-Impaired and Non-English Speaking Persons Act of 1987 (the "Interpreter Act"), D.C.Code §§ 31-2701 et seq. (1993), and by the Constitution of the United States.
Some of the issues presented to us by Ko are serious ones. Almost without exception, however, Ko's contentions are being raised for the first time on appeal. If an appropriate and timely objection had been made to the procedures which Ko now assails, any actual or perceived problem could readily have been corrected by the trial judge. Under these circumstances, my colleagues and I have reviewed the actions and procedures complained of for plain error, and we have found none.
In February, 1992, Ko purchased the Szechuan Restaurant, a well-known Chinatown eatery, from its previous owner, Tony Cheng. Later during that year, Ko accused several employees, including in particular a waiter named Sau Wong Lam, of stealing money from him. Lam and the others vigorously denied these allegations.
According to the prosecution, Ko and persons associated with Ko contrived to force Lam to confess that he was responsible for the theft and to implicate Lam's confederates. Lam was threatened, kicked, beaten, and burned with a hot chafing dish. Lam ultimately signed a written confession, and he admitted to the theft on videotape. Lam also signed a promissory note in which he agreed to pay Ko $20,000. The charges against Ko and his codefendants arose out of their alleged involvement in the mistreatment and coercion of Lam. Ko, as previously indicated, was the only defendant whom the jury convicted of any offense. He filed this timely appeal.
It was apparent in advance to all concerned that the trial in this case would require the use of interpreters, and both the judge and the prosecution made extensive preparations. At the beginning of the trial, prior to jury selection, the judge announced that the government had retained an interpreter for the prosecution witnesses and that the court had appointed two interpreters to assist the defendants. There was no objection from any party to this arrangement. During the course of the trial, a number of perceived or actual problems arose with respect to the performance of the interpreters.
The first issue that arose concerned the identification of the specific dialect that was being used. During the testimony of Tony Cheng, the first Chinese-speaking witness, it was determined that interpretation was being provided to Cheng in Mandarin, rather than in Cantonese. Subsequently, when Sau Wong Lam, the principal complaining witness, was on the witness stand, the defense claimed that although the interpreter was using Mandarin, Lam was answering in Cantonese. On each occasion, the judge conducted a voir dire inquiry outside the presence of the jury and established that the questions and the testimony were being property translated. Counsel were apparently satisfied with the judge's disposition of these problems.4
During Lam's testimony, two claims of mistranslation were raised on Ko's behalf. First, Ko's attorney asserted that the interpreter had used the term "music room" when Lam had testified about a "karaoke room." The prosecutor then asked Lam whether there was a particular name for the music room, and Lam responded that "they call it karaoke." Ko also claimed that the interpreter had translated "six days" as "seven days." Ko's counsel subsequently elicited from Lam, on cross-examination, an acknowledgment that the period was in fact six days.5
While Lam was on the witness stand, the defense accused the interpreters of bias. Ko's attorney reported as follows:
I am told that this translator and the last translator are known friends to Mr. Cheng. Now, I don't know if this is true. I'm just saying, you know, that this is bothering me and they're going crazy here.
In response to this complaint, the judge conducted a voir dire examination of all of the interpreters. Each interpreter denied that he had had any social or professional contact with Tony Cheng or with any other person connected with the case. The judge rejected the claims of bias.
The judge commented that he had been watching the jury "pretty carefully" while Ko's attorney was questioning Lam, and that he could "guarantee" that the jurors were not looking at the interpreter at the time of this alleged incident. Rather, according to the judge, the jurors' attention was focused on the "lively show" which was being put on by Ko's attorney. Although Ko's counsel continued to express outrage and indignation regarding this interpreter's alleged conduct,6 he did not seek a mistrial or any other relief. On the contrary, counsel stated:
Can I just, in a couple of sentences, quietly put to rest — I am not raising an issue like there's some horrible error in this case. I don't think that happened.7
As a result of these complaints, which the trial judge characterized as "mostly nonsense," the judge ordered that, from that point forward, the interpreters were not to have contact with anyone connected with the case. The judge commented that, in retrospect, he perhaps should have instituted such ground rules for the interpreters at the beginning of the trial.8 The judge then advised counsel that he had arranged with the Superior Court's Office of Court Interpreting Services (OCIS) "that the interpreters who are normally utilized by the U.S. Attorney's Office would be, for the purpose of this trial, in essence subcontracted to the court." The judge ordered that the interpreters would now be rotated between the witness stand and the defense table, and that all interpreters — those initially retained by the prosecution, as well as those initially appointed by the court — would interpret both for the witnesses and for the defendants. The purpose of this arrangement, the judge explained, was to avoid the perception by the jury of "any favoritism being shown here as a result of certain interpreters working on one team." Counsel for Ko interposed no objection to the new rotation arrangement.
The attorney for one of Ko's codefendants made an oral motion in which he asked the judge to dismiss all of the interpreters because of what counsel characterized as a "strong possibility of bias." In ruling on this motion, the judge addressed the controversy over the interpreters in some detail. After noting that it would be logistically difficult to find, on short notice, new interpreters certified in the various Chinese dialects,9 the judge stated: "I'm not satisfied that any of these interpreters has misperformed in any way." Noting the harsh language which Ko's attorney had exchanged with one of the interpreters, see note 6, supra, the judge concluded:
I think probably Ko's attorney in the heat of battle may have read a bit more into the situation than is warranted. I'm satisfied that it's been rectified. I'm also satisfied that the interpreter is a professional and he's not going to come back tomorrow determined to mistranslate everything for Ko or for anybody else. I don't think there's a basis for that. So the request for a new crew is denied.
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