U.S. v. Lim

• Decision Date: 14 July 1986
• Docket Number: 84-5206 and 84-5210,Nos. 84-5204,s. 84-5204
• Citation: 794 F.2d 469
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jong Moon LIM, Dong Joon Ahn, Chul Ko, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 469

794 F.2d 469

UNITED STATES of America, Plaintiff-Appellee, v. Jong Moon LIM, Dong Joon Ahn, Chul Ko, Defendants-Appellants.

Nos. 84-5204, 84-5206 and 84-5210.

United States Court of Appeals, Ninth Circuit.

Argued June 5, 1985.

Submitted Nov. 6, 1985.

Decided July 14, 1986.

Lynne R. Lasry, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Craig E. Weinerman, Kenneth D. Noel, San Diego, Cal., Frederick W. De Lisio, Santa Ana, Cal., for defendants-appellants.

Appeal from the United States District Court for the Southern District of California.

Before SCHROEDER and FLETCHER, Circuit Judges, and BURNS, ^* District Judge.

PER CURIAM.

Appellants Lim, Ahn, and Ko, appeal their convictions for conspiracy to defraud the United States in violation of 18 U.S.C. Sec. 371 by exporting cartridge casings without complying with applicable government regulations on the export of munitions materials. Lim also appeals his conviction for visa fraud. Appellants were jointly tried, and they raise a number of claims of error in the proceedings.

All three appellants speak Korean. The only claims meriting serious attention are their claims of denial of statutory and constitutional rights to an interpreter.

A criminal defendant who relies principally upon a language other than English has a statutory right to a court-appointed interpreter when his comprehension of the proceedings or ability to communicate with counsel is impaired. 28 U.S.C. Sec. 1827(d)(1). In addition, several circuits have held that a defendant whose fluency in English is so impaired that it interferes with his right to confrontation or his capacity, as a witness, to understand or respond to questions has a constitutional right to an interpreter. United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2d Cir.1970); see United States v. Martinez, 616 F.2d 185, 188 (5th Cir.1980) (per curiam), cert. denied, 450 U.S. 994, 101 S.Ct. 1694, 68 L.Ed.2d 193 (1981); United States v. Carrion, 488 F.2d 12, 14 (1st Cir.1973) (per curiam), cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974).

The entitlement to interpreters under the statute for all but Ahn is acknowledged in this case. Accordingly, our concerns are with the adequacy of the interpretation furnished. The requirements of the Act are satisfied in a criminal case if an interpreter is by the defendant's side "continuously interpreting the proceedings." United States v. Tapia, 631 F.2d 1207, 1209 (5th Cir.1980). Because the defendants may not have received continuous interpretation, we must address whether the purposes of the Act were adequately met.

From the record of the original trial, it was very difficult to determine whether any lack of interpreter's assistance affected the ability of any of the defendants to understand the proceedings or communicate with counsel. Accordingly, we remanded the matter to the district court for further findings and appropriate further evidentiary proceedings, 767 F.2d 935. Upon our review of the supplemental record, the district court's supplemental findings and the original record, we affirm the convictions.

The record as augmented upon remand demonstrates conclusively that the defendant Ahn communicated well in English and had no primary reliance on a foreign language. The district court on remand so found. Ahn has not challenged that finding. Accordingly, the only remaining contentions concerning the lack of an interpreter are those of defendant Lim, in which defendant Ko joins to some extent. The district court found that Lim's ability to understand the proceedings and to communicate with his counsel were not impaired by the way the interpreters were used at trial. These are factual findings reviewed under the clearly erroneous standard. See United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

The finding that Lim's ability to understand the proceedings was not affected is not clearly erroneous. A court appointed interpreter was present at trial at all times. During most of the periods of the trial when a witness needed assistance from an interpreter, two court appointed interpreters were present: one to interpret the witness' testimony and the other to assist the defendants Lim and Ko. Defendant Lim also had his own interpreter who was present throughout the trial.

On three occasions the court "borrowed" a court interpreter from the defense table in order to assist a witness. On two of those occasions, however, the second court interpreter was present and able to sit at the defense table with Mr. Lim and Mr. Ko. The district court's finding that there was no interference with their ability to understand the proceedings or to communicate with counsel is not clearly erroneous. On the third occasion, which occurred during the testimony of Mr. Kun Kim, there was no second court interpreter present at the defense table. However, the court interpreter used a microphone, there was no objection at the time of trial, and no direct evidence was submitted at the supplemental hearing to indicate that there was any particular portion of the original trial that the defendants could not actually understand.

The finding that the defendants' ability to communicate with counsel was not impaired is also not clearly erroneous. The record reflects that the interpreter sat between defendants Lim and Ko, on one arm of an L-shaped counsel table arrangement. The defense counsel sat on the other arm several feet away. Communication with counsel during trial was by means of notes. The arrangement was chosen by defendants and their counsel, not by the court. Mr. Lim's own interpreter was used to communicate with counsel during breaks or recesses in the trial.

There was therefore...