United States v. Charles

• Citation: 722 F.3d 1319
• Decision Date: 25 July 2013
• Docket Number: No. 12–14080.,12–14080.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Manoucheka CHARLES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

722 F.3d 1319

UNITED STATES of America, Plaintiff–Appellee,

v.Manoucheka CHARLES, Defendant–Appellant.

No. 12–14080.

United States Court of Appeals, Eleventh Circuit.

July 25, 2013.

Phillip Drew DiRosa, U.S. Atty., Fort Lauderdale, FL, Anne Ruth Schultz, Vanessa Sisti Snyder, Wifredo A. Ferrer, Amanda Perwin, U.S. Attys., Miami, FL, for Plaintiff–Appellee.

Ricardo Bascuas (Court–Appointed), Coral Gables, FL, Beatriz Galbe Bronis, Michael Caruso, Paul Michael Rashkind, Fed. Pub. Defenders, Samuel J. Randall, Kenny Nachwalter, PA, Miami, FL, for Defendant–Appellant.

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

Before BARKETT and MARCUS, Circuit Judges, and CONWAY,^* District Judge.

BARKETT, Circuit Judge:

Manoucheka Charles, a Haitian national, appeals from her conviction for knowingly using a fraudulently altered travel document in violation of 18 U.S.C. § 1546(a). Charles, who speaks Creole and does not speak English, argues that her conviction must be reversed because the only evidence to support the charge that she knowingly used a fraudulently altered travel document was the third-party testimonyof a Customs and Border Protection (“CBP”) officer as to the out-of-court statements made by an interpreter who translated Charles's Creole language statements into English during the CBP officer's interrogation of Charles.¹ On appeal, Charles argues that the erroneous admission of the CBP officer's trial testimony of what the interpreter said to him violated her Sixth Amendment Confrontation Clause rights.

I. Factual and Procedural Background

Charles arrived at the Miami International Airport from Haiti and presented her travel documents to a CBP officer. These included her Haitian passport, a customs declaration form, and Form I–512, which provides authorization for persons to travel in and out of the United States while they are in the process of gaining legal immigration status. The first CBP officer, who did not speak Creole, referred Charles to a second CBP officer, who checked the I–512 document against a computer database and discovered that the name and date-of-birth associated with the I–512 in the database was not the same as the one on the I–512 that Charles presented. Charles was then sent to secondary inspection, where she was interrogated by a third CBP officer, who also did not speak Creole, but who used an over-the-phone interpreter service under contract with the Department of Homeland Security to allow him to conduct his interrogation. The interpreter on the phone translated from English to Creole the CBP officer's questions for Charles as well as translated from Creole to English Charles's responses to the CBP officer's questions.

At trial, the government did not call the interpreter to testify. Instead, the government presented the testimony of the three CBP officers to establish what happened at the airport. The third CBP officer, who conducted the interrogation through the interpreter, told the jury what the interpreter told him Charles had said. He testified that the interpreter told him that Charles stated that she did not receive the I–512 from United States authorities, but that she received the document about a month after she provided her photograph and passport to a man who offered to help her and that she did not pay anything for the document. The officer also testified that when she was asked, through the interpreter, where she was planning to live in the United States, she provided a relative's address in Key West. When she was asked, through the interpreter, why the address on the I–512 was different than the Key West address, she said “the form was already given to her completed.” He then testified that Charles also stated, through the interpreter, that “when she sat down [on the plane], she started reading the document and she noticed that the document was illegal because it didn't fit her profile.”²

Because the government did not call the interpreter as a witness, Charles did not have an opportunity to cross-examine the interpreter regarding what any of Charles's purported statements meant or what specific words or phrases Charles actually used. For example, when the interpreter supposedly said that Charles told her the document “didn't fit her profile,” defense counsel had no opportunity to cross-examine the interpreter regarding whether Charles used those actual words or different words which the interpreter characterized as not “fit[ting] her profile.” Likewise, when the interpreter said Charles knew the form was “illegal,” there could be no cross-examination about what actual words Charles used and whether the words she used in Creole could have had other meanings than “illegal.”

II. Discussion

On appeal, Charles argues that her Confrontation Clause rights were violated by the admission of the CBP officer's in-court testimony as to the interpreter's English language out-of-court statements, without the opportunity to cross examine the interpreter. Our review of this argument is for plain error because Charles did not object during her trial to the CBP officer's testimony as a violation of her rights under the Confrontation Clause. Under plain error review, we cannot correct an error that was not raised at trial unless: (1) there was error; (2) that was plain; (3) that affected the defendant's substantial rights; and (4) we determine that it that seriously affected the fairness, integrity, or public reputation of the judicial proceedings. See United States v. Arbolaez, 450 F.3d 1283, 1291 (11th Cir.2006) (applying plain error review to a Confrontation Clause violation raised for the first time on appeal). Accordingly, we first must determine whether it was erroneous under the Confrontation Clause to admit the CBP's officer's testimony. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (“The first limitation on appellate authority ... is that there indeed be an ‘error.’ ”).

The Confrontation Clause to the Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court explained that under the Confrontation Clause, “[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine” the declarant. (Emphases added). In reiterating the genesis of this understanding of the Confrontation Clause, the Court made several critical observations about the long-standing meaning of this right.

First, the Court in Crawford explained that the Confrontation Clause is concerned with witnesses against the defendant, “in other words, those who ‘bear testimony.’ ” 541 U.S. at 51, 124 S.Ct. 1354 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). And testimony itself has a particular meaning, in that it is “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. Testimonial statements are ones “that declarants would reasonably expect to be used prosecutorially[.]” Id. The Confrontation Clause, therefore, “reflects an especially acute concern with a specific type of out-of-court statement.” Id. That concern is with testimonial statements made out of court by a declarant whom the defendant has a constitutional right to confront through cross-examination.³

Next, the Court explained that “the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”Id. at 53–54, 124 S.Ct. 1354;see also United States v. Baker, 432 F.3d 1189, 1203 (11th Cir.2005) (same). Unavailability of the declarant and the prior opportunity to cross-examine the declarant are limitations required to satisfy the Sixth Amendment. Id. at 54, 124 S.Ct. 1354 (noting that the constitution does not suggest exceptions to the confrontation requirement). The Court held that the prior opportunity for cross-examination was not merely sufficient, but rather “dispositive” for the admissibility of testimonial statements. Crawford, 541 U.S. at 55–56, 124 S.Ct. 1354.

Finally, in clarifying the appropriate test under the Confrontation Clause for admitting testimonial out-of-court statements of a declarant, the Court in Crawford overruled the test that it previously laid out in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).⁴ The Court noted that in Roberts, the introduction of all out-of-court statements was permitted so long as they fell under a “firmly rooted hearsay exception” or “bore particularized guarantees of trustworthiness.” Crawford, 541 U.S. at 60, 124 S.Ct. 1354. In Crawford the Court rejected this test as it applies to testimonial out-of-court statements as too narrow, permitting the admission of such statements “upon a mere finding of reliability.” Id. Indeed, the Court explained that “[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of reliability.” Id. at 61, 124 S.Ct. 1354. “Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices.” Id. at 51, 124 S.Ct. 1354;see also id. at 50–51, 124 S.Ct. 1354 (“[W]e once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon the law of Evidence for the time being.”) (quotation marks omitted). Instead, the constitution commands that “relia...