U.S. v. Villalta, 81-3096

• Decision Date: 07 December 1981
• Docket Number: No. 81-3096,81-3096
• Citation: 662 F.2d 1205
• Parties: 9 Fed. R. Evid. Serv. 1009 UNITED STATES of America, Plaintiff-Appellant, v. Orlando G. VILLALTA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1205

662 F.2d 1205

9 Fed. R. Evid. Serv. 1009

UNITED STATES of America, Plaintiff-Appellant, v. Orlando G. VILLALTA, Defendant-Appellee.

No. 81-3096.

United States Court of Appeals, Fifth Circuit.

Dec. 7, 1981.

W. Glenn Burns, Michael Schatzow, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellant.

Jerry L. Jones, Monroe, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before AINSWORTH, GARZA and RANDALL, Circuit Judges.

PER CURIAM:

Orlando G. Villalta and Beau A. Hemenway, Villalta's nephew, were charged in an indictment with conspiracy to acquire firearms, as defined by 26 U.S.C. § 5845, without complying with the provisions relating to the transfer of such firearms set forth in 26 U.S.C. § 5812(b). As a result of pre-trial negotiations, the co-defendant Hemenway was placed on thirty-six months active probation pursuant to a pre-trial diversion plan which provided that Hemenway was to cooperate completely and truthfully in this case.

Villalta is a native of Nicaragua and is Spanish speaking. Hemenway speaks some Spanish and was involved in negotiations for the purchase of the firearms. During several conversations with undercover operatives of the Jefferson Parish Sheriff's office and the Bureau of Alcohol, Tobacco and Firearms, Hemenway acted as the interpreter between the agents and Villalta. Two of these conversations were recorded and independently translated by personnel of the Bureau of Alcohol, Tobacco and Firearms.

In view of the anticipated testimony of Hemenway, the district court held a hearing relating to the ability of Hemenway to translate Spanish into English. Three tests were given to Hemenway, and a court appointed interpreter, recognized as an expert in simultaneous interpretation, expressed the following opinion as to Hemenway's ability to translate:

I think that he would be able to manage quite fine in conversation that would be either among people of a very low level of education, in the sense that he seems to have learned Spanish with very uneducated Cubans or to have gone to school and have learned it in a very partial fashion. That would be my evaluation. So that in a speeded up conversation he would have only to-he could only translate partially and block out certain parts, or knowing what was going on could help him give the essence of what he was-of what was going on, but by no means give the full contents of what was going on. (R.V. 2-50).

On February 3, 1981, the district court issued its ruling to the effect that "Mr. Hemenway's testimony as to situations in which he depended upon his knowledge of Spanish for comprehension of events taking place would not be sufficiently credible to bring before a jury. Accordingly, such testimony from Mr. Hemenway will not be admitted at trial." The government filed a motion to reconsider the ruling of the trial court. On February 18, 1981, the district court denied the government's motion for reconsideration and maintained its earlier ruling. This appeal by the government followed.

Rule 601 of the Federal Rules of Evidence is the general rule relating to the competency of a witness to testify. It states in pertinent part that "every...