United States v. Bailon-Santana

Court Case Details
Court Case Opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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No. 04-50079

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TATES OF

MERICA

Plaintiff-Appellee,

D.C. No.

v.

CR-02-00118-AHS-

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,

ILBERTO

AILON

ANTANA

Defendant-Appellant.

OPINION

Appeal from the United States District Court

for the Central District of California

Alicemarie H. Stotler, District Judge, Presiding

Argued and Submitted

August 3, 2005—Pasadena, California

Filed December 6, 2005

Before: William C. Canby, Jr., Alex Kozinski and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Kozinski;

Dissent by Judge Rawlinson

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COUNSEL

Michael Ian Garey, Santa Ana, California, for the defendant-
appellant.

Nancy B. Spiegel, Assistant United States Attorney, Los
Angeles, California; Debra W. Yang, United States Attorney;
Wayne R. Gross, Assistant United States Attorney, Chief,

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Southern Division; John D. Early, Assistant United States
Attorney, San Francisco, California, for the plaintiff-appellee.

OPINION

KOZINSKI, Circuit Judge:

We consider whether an attorney’s representation that he

translated a jury waiver form for his non-English speaking cli-
ent obviates the need for an in-court waiver colloquy.

Facts

Bailon-Santana was charged with conspiracy to distribute

and to possess with intent to distribute more than 500 grams
of cocaine, and possession with intent to distribute cocaine.
See 21 U.S.C. §§ 841(a)(1), 846. The defendant, a Mexican
native, communicated with the court through a court-certified
interpreter during the proceedings. Before trial, he signed a
jury waiver form pursuant to Federal Rule of Criminal Proce-
dure 23(a)(1), but the form was printed only in English. His
attorney represented both on the form and in court that he had
translated the form into Spanish for his client. The district
court asked defendant whether he had waived his jury trial
right and the defendant answered in the affirmative. The court
then accepted the waiver and proceeded to hold a bench trial.
Bailon-Santana was convicted and sentenced to thirty years in
prison. He now challenges the validity of his jury waiver and
the sufficiency of the evidence underlying his conviction.

Discussion

[1] 1. In United States v. Duarte-Higareda, 113 F.3d

1000 (9th Cir. 1997), we held that “where the record indicates
a special disadvantage or disability bearing upon the defen-
dant’s understanding of the jury waiver,” such as a language

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barrier, “the district court must conduct a colloquy with the
defendant to ensure that the wavier is voluntary, knowing, and
intelligent.” Id. at 1003. Duarte-Higareda is on all fours with
our case except for one arguably relevant fact: The opinion
there noted that “[t]he record does not reflect whether the
written waiver was translated into Spanish for Duarte.” Id. at
1002. Although Duarte-Higareda noted this in its factual
exposition, it made no reference to it in its discussion. It is
unclear, therefore, whether the Duarte-Higareda court would
have reached a different result had the defendant there signed
a properly translated waiver form. Were we to conclude that
Bailon-Santana signed a form that was properly translated for
him before he signed it, we would have to determine whether
that adequately distinguishes Duarte-Higareda.

[2] In federal courts, translations for criminal defendants

and witnesses who are not fluent in English are normally pro-
vided by certified experts. Congress requires federal courts to
certify interpreters, like the one who translated for Bailon-
Santana throughout the proceedings, for use in federal judicial
proceedings. See Court Interpreters Act, 28 U.S.C. §§ 1827-
28. To be certified as a Spanish federal-court interpreter, an
applicant must pass a rigorous written and oral examination,
which requires native-level mastery of both English and Span-
ish. Many people claim “fluency” in a foreign language, but
“[t]here are few persons in the United States who can interpret
with the degree of precision and accuracy required at the Fed-
eral court level.” H.R. Rep. No. 100-889, at 58 (1988),
reprinted in 1988 U.S.C.C.A.N. 5982, 6019. Jurors who con-
sider their own translation skills superior to those of the certi-
fied interpreter are nevertheless instructed to consider only the
certified translation. See 9th Cir. Model Crim. Jury Instruction
3.20.

Use of certified interpreters ensures that the criminal defen-

dant or witness who is not fluent in English is given an accu-
rate account of the proceedings, and that the other courtroom
participants understand exactly what the non-English-

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speaking individual is saying. Because the judge and other
participants in the courtroom usually have no way of confirm-
ing whether the translation is accurate, training and certifica-
tion by an authority qualified to test these skills provides an
objective verification that everyone in the courtroom is on the
same page.

[3] Bailon-Santana’s lawyer is not certified as a Spanish-

English interpreter—at least the record does not reflect that he
is. Rather, in a signed statement he filed with the court, the
attorney represented that he is “fluent in written and spoken
English and Spanish languages” and that he “accurately trans-
lated this entire waiver from English into Spanish to defen-
dant Gilberto Bailon-Santana.” The lawyer also stated that he
had “carefully discussed this waiver of jury trial with [his] cli-
ent,” that he had “fully advised [his] client of his right to a
jury trial and of the consequences of entering into this waiv-
er,” and that his “client’s decision to enter into this waiver
[was] an informed and voluntary one, and one in which [he]
join[ed].” At the jury waiver hearing, the court asked the
defense attorney whether he had translated the waiver, and the
attorney reiterated that he had done so.

[4] While the lawyer’s statements are reassuring, and his

representation that he is fluent in Spanish was no doubt
entirely candid, his statement nonetheless lacks one crucial
component: confirmation by someone familiar with the requi-
site standard that the lawyer’s fluency is commensurate with
the level required for translating the sometimes difficult
words and concepts used in federal criminal cases. Certifica-
tion as an official court interpreter is one way of ensuring
competence, but it is not the only way. Where a certified
interpreter is not “reasonably available,” see 28 U.S.C.
§ 1827(b)(2), Federal Rule of Evidence 604 provides a means
for the court to qualify an individual as an interpreter,
employing the methodology used for qualifying expert wit-
nesses. One way or the other, however, the record must reflect

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a determination, based on something more than the individu-
al’s say-so, that he has the requisite translating ability.

[5] The record here reflects only the defense lawyer’s self-

assessment. While we don’t doubt that he was entirely truth-
ful, we have no way of knowing whether he is even familiar
with the standard used to certify interpreters, and thus we can-
not be sure that his Spanish-speaking ability is as good as he
believes it to be. We do not hold that an individual’s self-
assessment can never be a sufficient basis for a finding that
he has the requisite fluency to serve as an interpreter. Rather,
any self-assessment, if it is to be sufficient, must reflect a
familiarity with the applicable standard, and must also reveal
the basis for the assessment—such as a description of the
training received in order to gain the requisite level of flu-
ency. And, of course, the district court must make a finding
that the interpreter is qualified as an expert witness and is
competent to serve as an interpreter in a federal criminal pro-
ceeding. None of this happened here. Rather, the district court
seems to have accepted the lawyer’s self-certification at face
value
. We treat this as a finding by the district court that the
lawyer properly translated the form, and reverse that finding
as not supported by the record.

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[6] Absent a properly-translated jury form, our case is iden-

tical to Duarte-Higareda, and we have no reason to resolve
the question apparently left open there—whether the district
judge must conduct a colloquy where the defendant has

Our dissenting colleague correctly observes that “[t]he record reflects

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no expression of surprise, confusion or objection from Bailon-Santana
upon hearing that his counsel ‘served as the interpreter’ during the jury
waiver process.” Dissent at 15781. But we’re not sure what Bailon-
Santana should have been confused or surprised about, or what occasion
he would have had to object. His lawyer had assured him that he had
translated the form accurately and nothing Bailon-Santana learned at the
hearing would have caused him to doubt the accuracy of the translation.
If the lawyer’s translation was nevertheless inadequate, nothing Bailon-
Santana learned at the hearing could have brought that inadequacy to light.

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signed a properly translated form.

As in Duarte-Higareda,

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the jury trial waiver was invalid, and we must reverse the convic-
tion.

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2. We must also consider defendant’s contention that his

conviction was not supported by sufficient evidence because
“a challenge to the sufficiency of the evidence implicates a
defendant’s rights under the Double Jeopardy Clause.” United
States
v. Boulware, 384 F.3d 794, 810 (9th Cir. 2004), cert.
denied
, 126 S. Ct. 337 (2005). Defendant made a timely Rule
29 motion for acquittal based on the insufficiency of the evi-
dence, see Fed. R. Crim. P. 29(a), so we review his claim de
novo. Boulware, 384 F.3d at 810. “We will deny the claim if,
viewing the evidence in the light most favorable to the prose-
cution, any rational trier of fact could have found the elements
of the crime proved beyond a reasonable doubt.” Id.

[7] There was ample evidence to support the conspiracy

charge. A conspiracy requires “1) an agreement to accomplish
an illegal objective, 2) coupled with one or more acts in fur-
therance of the illegal purpose, and 3) the requisite intent nec-
essary to commit the underlying substantive offense.” United
States
v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). The

We also have no reason to determine whether, in the event that a writ-

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ten waiver can obviate the need for a colloquy, the written waiver form
in this case set forth sufficient information to make Bailon-Santana’s
waiver knowing and intelligent.

The dissent mistakenly asserts that “[t]he district court [here] did as we

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directed in Duarte-Higareda.” Dissent at 15781. In Duarte-Higareda, we
instructed that the district court should educate the defendant about the
jury trial right and then “question the defendant to ascertain whether the
defendant understands the benefits and burdens of a jury trial.” Duarte-
Higareda
, 113 F.3d at 1002. Here, the only communication the district
court had with Bailon-Santana on the matter of the waiver was to ask if
he had waived his jury trial right by signing the waiver form. The court
did absolutely nothing to educate defendant about the jury trial right, nor
did it probe defendant’s understanding of the right he was giving up. Con-
trary to the dissent’s characterization, the district court here omitted every-
thing that Duarte-Higareda requires.

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government presented evidence that defendant and his accom-
plice drove in two cars along routes calculated to evade law
enforcement to deliver a car filled with drugs for shipment
across the country. A reasonable trier of fact could have con-
cluded that defendant knew about the cocaine in the car on the
basis of his driving position, and that the drive constituted an
overt act in furtherance of the conspiracy to distribute drugs.
The evidence in the first trial having been sufficient, defen-
dant may be tried again.

REVERSED AND REMANDED.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent. I am not persuaded that our holding

in United States v. Duarte-Higareda, 113 F.3d 1000 (9th Cir.
1997), compels a finding that the jury trial waiver in this case
is unenforceable.

In Duarte-Higareda, the jury trial waiver was invalidated

because “the district court . . . fail[ed] to conduct a colloquy
with Duarte to ensure that his jury waiver was made voluntar-
ily, knowingly, and intelligently.” Id. at 1003. In this case, the
district court did question Mr. Bailon-Santana regarding the
jury trial waiver he executed.

The jury trial waiver executed by Bailon-Santana specified

that he “knowingly, voluntarily and freely” waived his right
to a jury trial. The waiver also acknowledged that the contents
had been read to Bailon-Santana in Spanish. The problem,
according to the majority opinion, is that the waiver was
translated by Edmundo Espinoza, Bailon-Santana’s attorney.

Mr. Espinoza inserted the following declaration into the

waiver:

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I, EDMUNDO ESPINOZA (handwritten), am flu-
ent in written and spoken English and Spanish lan-
guages. I accurately translated this entire waiver
from English into Spanish to defendant Gilberto
Bailon-Santana on this date.

The jury trial waiver was signed by Bailon-Santana and his

attorney on September 22, 2003. Approximately two weeks
later, Bailon-Santana’s trial commenced. On the first day of
trial, in the presence of the parties and a court interpreter, the
court noted its intention to “confirm” the jury trial waiver.
The court stated:

The court has granted the party’s request for jury
waiver, and this was previously filed. And so, I want
to confirm with both parties and defendant that this
is how they wish to proceed.

Mr. Bailon-Santana, you gave up your right to
jury trial
set forth in the writing that you signed back
on September 22, 2003; is that correct?

(emphasis added.)

The interpreter, replying on behalf of Bailon-Santana,

affirmed that he signed the jury waiver. The court verified
that Mr. Espinoza served as the interpreter for Bailon-Santana
during the course of events culminating in the jury waiver and
accepted the waiver with the following words:

Then I find, based upon the written waiver once
again, that the defendant has knowingly, intelli-
gently, and voluntarily waived his right to have the
matter tried to a jury in light of today’s further agree-
ment along with the explanations set forth in the
waiver filed on September 29.

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The majority opinion acknowledges Mr. Espinoza’s repre-

sentation that he is fluent in Spanish and accurately translated
the waiver to his client. Nevertheless, the majority opinion
invalidates the waiver because Mr. Espinoza is not a certified
court interpreter. This holding goes far beyond our ruling in
Duarte-Higareda.

In Duarte-Higareda, we focused on the

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court’s failure to “conduct a colloquy with the defendant to
ensure that the waiver is voluntary, knowing and intelligent.”
Duarte-Higareda, 113 F.3d at 1003. The district court in this
case did as we directed in Duarte-Higareda.

It inquired of

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the defendant and of his counsel regarding the circumstances
surrounding the execution of the waiver. The certified court
interpreter conveyed the court’s inquiries and remarks to
Bailon-Santana. The record reflects no expression of surprise,
confusion or objection from Bailon-Santana upon hearing that
his counsel “served as the interpreter” during the jury waiver
process.

This case is a far cry from Security Farms v. Int’l Bhd. of

Teamsters, 124 F.3d 999 (9th Cir. 1997), where the ability
and credibility of the translator were legitimately called into
doubt. See id. at 1011 (describing the translator’s need for an
interpreter during his deposition). No similar challenge was
raised as to Mr. Espinoza’s translation of the jury trial waiver.
Under the circumstances of this case, I cannot agree that the
district court failed to discharge its responsibility of ensuring
that the defendant’s jury waiver was voluntary, knowing and
intelligent.

Cf. United States v. Valdivia, 60 F.3d 594, 595 (9th Cir. 1995), where

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we rejected an ineffective assistance of counsel claim predicated upon
defense counsel’s use of the defendant’s daughter as an interpreter.

The majority opinion characterizes this statement as “mistaken.” See

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Majority Opinion, p. 15778 n.3. However, in Duarte-Higareda, we held
that the district court “failed to discharge [its] responsibility [b]y failing
to address Duarte at all.” Duarte-Higareda, 113 F.3d at 1003. Although
the court’s inquiry in this case was not ideal, it cannot be said that the
court failed to address Bailon-Santana at all.

Referenced Cases