United States v. Claudio Romo-Chavez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-10424

Plaintiff-Appellee, D.C. No.

v.  4:09-cr-01045-

CLAUDIO ROMO-CHAVEZ, FRZ-JCG-1

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the District of Arizona

Frank R. Zapata, Senior District Judge, Presiding

Argued and Submitted

December 6, 2011—San Francisco, California

Filed May 23, 2012

Before: Diarmuid F. O’Scannlain and Marsha S. Berzon,

Circuit Judges, and Robert S. Lasnik, District Judge.*

Opinion by Judge O’Scannlain;

Concurrence by Judge Berzon

*The Honorable Robert S. Lasnik, United States District Judge for the

Western District of Washington, sitting by designation.

5677

5680 UNITED STATES v. ROMO-CHAVEZ

COUNSEL

M. Edith Cunningham, Assistant Federal Public Defender,

Tucson, Arizona, argued the cause and filed the briefs for the

appellant. With her on the briefs was Jon M. Sands, Federal

Public Defender for the District of Arizona.

Bruce M. Ferg, Assistant United States Attorney, Tucson,

Arizona, argued the cause and filed the brief for the appellee.

With him on the brief were Dennis K. Burke, United States

Attorney and Christina M. Cabanillas, Appellate Chief, for

the District of Arizona.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the Confrontation Clause or the

Federal Rules of Evidence prohibit the government from

introducing at trial a defendant’s admissions to a police offi-

cer because the translator who facilitated them, while conver-

sationally fluent, would not qualify as a court interpreter.

I

Claudio Romo-Chavez is a citizen and national of Mexico.

In May 2009, he attempted to enter this country at the DeCon-

cini Port of Entry in Nogales, Arizona, driving a 1999 Buick

Century. During primary inspection, he was greeted by Cus-

toms and Border Protection (“CBP”) Officer Brian Tipling.

Romo-Chavez told Officer Tipling that he was from Magda-

UNITED STATES v. ROMO-CHAVEZ 5681

lena, Mexico, and that he was entering the United States to

return two shirts to the Dillard’s store in Scottsdale. Finding

the story suspicious, Officer Tipling employed a long-handled

mirror to examine the underside of Romo-Chavez’s vehicle

and found evidence of tampering on the bolt holding the fuel

tank to the undercarriage.

Romo-Chavez was referred to secondary screening, where

he told CBP Officer David Aldrich that he was from some-

where between Obregon and Hermosillo, Mexico (several

hours by car south of Magdalena). He also stated that he was

going to “ ‘Tucson, maybe Phoenix,’ ” and that “part of it was

for business and part of it was for pleasure.”1 Aldrich, alerted

by Tipling and similarly suspicious of Romo-Chavez’s story,

examined the Buick. He noticed a tampering in the backseat

area above the gas tank as well as a smell he associated with

secret compartments.

A

CBP Officer Jeff Steger arrived with his drug detection

dog, who alerted to something in the vehicle. He informed his

supervisor, who called away Officer Aldrich. At this time,

Officer Steger collected some personal items from the Buick,

which he deemed to be of no evidentiary value and placed

them into a bag for storage. Romo-Chavez was promptly noti-

fied how he could collect these items.2 Another CBP Officer,

Edward Vejar, pried open a carefully constructed box located

in the Buick’s gas tank and found a number of packages con-

1

Because Officers Aldrich and Tipling speak Spanish, they did not

require the assistance of a translator. Though there was some discussion

of their qualifications at trial, Romo-Chavez does not challenge that matter

in this appeal.

2

Though Romo-Chavez’s attorney collected the currency that he had

possessed at the time of his arrest, the majority of the items remained in

CBP storage for months. They were eventually destroyed in accordance

with routine CBP protocol.

5682 UNITED STATES v. ROMO-CHAVEZ

taining white crystalline material, which tested presumptively

positive for methamphetamine.

B

While Officers Steger and Vejar were collecting these

items, Romo-Chavez was questioned by Special Agent

Andrew Simboli of Immigration and Customs Enforcement

(“ICE”). Romo-Chavez told Simboli that he was from

Nogales, Mexico (which is north of both Magdalena and

Obregon) and provided some basic biographical information.

Having exhausted his knowledge of Spanish, Agent Simboli

required a translator to facilitate further conversation.

With the assistance of CBP Officer David Hernandez,

Agent Simboli Mirandized Romo-Chavez in Spanish. Officer

Hernandez then translated as Romo-Chavez explained that he

came to the United States to return two shirts to a Dillard’s

in Phoenix. When Agent Simboli asked why he was not going

to the Dillard’s in Tucson, Romo-Chavez changed his answer

to say that he was indeed going to that store. Romo-Chavez

also told the agent that the previous Saturday he had received

an offer to sell the Buick in exchange for a small truck and

$2,000 and that he was going to meet the buyer at an Auto-

Zone in Nogales to complete the transaction. After Romo-

Chavez told Simboli that he had recently had an engine sensor

replaced in his car, Simboli asked him about the methamphet-

amine that had by this time been discovered in his car. Romo-

Chavez denied knowledge, and the interview ended.

Agent Simboli testified that he recognized proper nouns

such as “Phoenix” and “Dillard’s,” but otherwise depended on

Officer Hernandez’s translation. Though Romo-Chavez later

claimed not to have understood Officer Hernandez, the record

does not indicate that he ever told Hernandez or Simboli at

the time that he could not understand the questions.

UNITED STATES v. ROMO-CHAVEZ 5683

C

Further examination of the Buick revealed that several gal-

lons of gasoline in its tank had been displaced with almost six

kilograms of 99.6% pure methamphetamine. Investigation

also showed that Romo-Chavez had a history of crossing the

border with Gustavo Vargas-Dias, a known drug trafficker

who had boasted to him that he trafficked in narcotics. Romo-

Chavez was charged with knowing possession of metham-

phetamine with intent to distribute it in violation of 21 U.S.C.

§ 841(a)(1) and 841(b)(1)(A)(viii) and with importing the

substance into the United States in violation of 21 U.S.C.

§§ 960(a)(1) and 960(b)(1)(H).

D

At trial, Romo-Chavez’s defense was that he was unaware

that the drugs were in his car. He asserted that Vargas-Diaz,

who helped him purchase his car and then helped to arrange

repairs of the broken sensor, must have surreptitiously

installed the secret compartment while the car was in the

shop. Romo-Chavez testified that he was going to Phoenix

primarily to inquire about enrolling in an online MBA pro-

gram offered by the University of Phoenix. He said that

returning the shirts was only a secondary goal and that he also

wished to repair a crack in his windshield. He claimed that he

would have been able to corroborate his story using certain

personal items located in his car, particularly his cellular tele-

phone, if only the government had preserved them. He

attempted to explain away any apparent inconsistencies in his

story as a result of Officer Hernandez’s allegedly poor trans-

lation.

After a five-day trial, the jury convicted Romo-Chavez on

all counts. Romo-Chavez timely appeals.

II

On appeal, Romo-Chavez first argues that admission of

Agent Simboli’s account of what Romo-Chavez said during

5684 UNITED STATES v. ROMO-CHAVEZ

the interview on the border violated both the rule against hear-

say and the Confrontation Clause. The government counters

that because Officer Hernandez served merely as a language

conduit, his translations to Officer Simboli should be treated

as Romo-Chavez’s own statements.

A

[1] When an out-of-court statement is offered to prove the

truth of the matter asserted, it is hearsay and generally inad-

missible. Fed. R. Evid. 802. However, a party may introduce

the out-of-court statements of his opponent as party admis-

sions. Fed. R. Evid. 801(d)(2). Therefore, Romo-Chavez’s

statements were admissible if “the translated statements”

made by Officer Hernandez “fairly should be considered the

statements” of Romo-Chavez. United States v. Nazemian, 948

F.2d 522, 527 (9th Cir. 1991).

[2] Whether statements made through an interpreter should

be considered statements of the original declarant “require[s]

an analysis of the facts on a case-by-case basis.” United States

v. Garcia, 16 F.3d 341, 342 (9th Cir. 1994). Generally, we

consider “the following four factors . . . : (1) which party sup-

plied the interpreter, (2) whether the interpreter had any

motive to mislead or distort, (3) the interpreter’s qualifica-

tions and language skill, and (4) whether actions taken subse-

quent to the conversation were consistent with the statements

as translated.” Id. at 342-43 (citation and internal quotation

marks omitted).

[3] The first factor weighs slightly in favor of Romo-

Chavez. Officer Hernandez was supplied by—indeed was an

employee of—the government. But “[t]he fact that [Her-

nandez] is a government employee does not, by itself, neces-

sarily prevent” his translations from being admissible. United

States v. Sanchez-Godinez, 444 F.3d 957, 960 (8th Cir. 2006);

see also Nazemian, 948 F.2d at 527-28; United States v. Da

Silva, 725 F.2d 828, 832 (2d Cir. 1983). Though never dispo-

UNITED STATES v. ROMO-CHAVEZ 5685

sitive, this factor would have greater weight if Officer Her-

nandez had “acted as both a translator and a federal law

enforcement officer,” by “ask[ing] the types of questions he

‘normally would ask’ in his capacity” as a government agent.

Sanchez-Godinez, 444 F.3d at 960-61. But while Officer Her-

nandez did read Romo-Chavez his Miranda rights off a pre-

printed card, the record indicates that he did not initiate any

of the questions. See id.

[4] The second factor weighs in favor of the government.

The district court found that Officer Hernandez had no motive

to distort the translation, and Romo-Chavez presents no rea-

son why this finding was clearly erroneous. We do not pre-

sume, as Romo-Chavez would have us do, that a public

servant is inherently biased. See United States v. Martinez-

Gaytan, 213 F.3d 890, 892 (5th Cir. 2000); see also Germano

v. Int’l Profit Ass’n, 544 F.3d 798, 802-03 (7th Cir. 2008); Da

Silva, 725 F.2d at 832;3 cf. United States v. Garcia-Martinez,

228 F.3d 956, 961 (9th Cir. 2000).

[5] The third factor, the skill of the translator, also weighs

in favor of the government. Whether an individual speaks a

foreign language with sufficient fluency to act as a translator

in a given situation is a question of fact. Cf. Nazemian, 948

F.2d at 527-28 (treating competence as an issue of fact and

evidence). The evidence establishes that Officer Hernandez

grew up in El Paso speaking Spanish, studied it in school,

spoke it at home with his wife, and conducted interviews in

it on a regular basis.

[6] We are unconvinced by Romo-Chavez’s assertion that

Hernandez was nonetheless incompetent to translate because

3

We note that Romo-Chavez’s only authority for his position is a foot-

note that we have already discounted. Nazemian, 948 F.2d at 527 (disre-

garding the language in United States v. Felix-Jerez, 667 F.2d 1297, 1300

n.1 (9th Cir. 1982), as dicta because it created an overly rigid frame of

analysis).

5686 UNITED STATES v. ROMO-CHAVEZ

he made minor mistakes when asked in court to recite the

Miranda warnings from memory. Both Officer Hernandez

and Agent Simboli testified that they had never attempted to

Mirandize a suspect in any language without the use of a pre-

printed form. We are even less persuaded that his difficulties

translating the technical aspects of a real estate contract when

asked to do so at trial indicate an inability to ask simple ques-

tions about an individual’s purpose in coming to the United

States. Judge Zapata, who “has a degree in Spanish . . . and

[has] spoken Spanish [his] entire life,” said that “he could not

have translated” the contract. As such, the record fully sup-

ports Judge Zapata’s conclusion that Officer Hernandez was

competent to translate Romo-Chavez’s answers about “where

he was going, where he lived . . . those sorts of questions. It’s

not very high level Spanish.”4

Because Romo-Chavez took no action after the translation,

the fourth factor—whether those actions were consistent with

the translated statement—is not relevant in this case. When

evaluating this factor, we look to objective action rather than

a party’s litigation position. See, e.g., Garcia, 16 F.3d at 344

(relying on the delivery of the same amount of drugs dis-

cussed by the translator); Nazemian, 948 F.2d at 528 (a series

of “repeated, lengthy meetings,” indicating that all parties

were content with the quality of the translator). Romo-

Chavez’s post hoc, self-serving denial is insufficient to tip this

factor in his favor.

[7] Taking these factors together, the district court did not

4

We recognize the concurrence’s concerns about Hernandez’s language

abilities, but Judge Zapata was in a far better place to determine what

those abilities were than we are reviewing a cold record. Speculation about

what “Romo-Chavez actually . . . may have” said, post at 5694, does not

demonstrate that Judge Zapata’s factual determination that the officer was

capable of translating these statements was clearly erroneous.

UNITED STATES v. ROMO-CHAVEZ 5687

err in concluding that Officer Hernandez served merely as a

language conduit for Romo-Chavez.5

B

[8] The Sixth Amendment guarantees a criminal defendant

the right “to be confronted with the witnesses against him.”

U.S. Const. amend. VI. However, this right is not implicated

here because Officer Hernandez’s translations are properly

construed as Romo-Chavez’s own statements. Nazemian, 948

F.2d at 525-26. Even if it were, however, it was satisfied by

Officer Hernandez’s appearance at trial. He may not have

remembered the interview, but “ ‘[t]he Confrontation Clause

includes no guarantee that every witness called by the prose-

cution will refrain from giving testimony that is marred by

forgetfulness, confusion, or evasion.’ ” United States v.

Owens, 484 U.S. 554, 558 (1988) (quoting Delaware v. Fen-

sterer, 474 U.S. 15, 21-22 (1985) (per curiam)). All the Con-

frontation Clause requires is the ability to cross-examine the

witness about his faulty recollections. Id.; see also Crawford

v. Washington, 541 U.S. 36, 59 n.9 (2004) (“Finally, we reit-

erate that, when the declarant appears for cross-examination

at trial, the Confrontation Clause places no constraints at all

on the use of his prior testimonial statements.”).

III

[9] Romo-Chavez next challenges the district court’s

refusal to instruct the jury to infer from the government’s

destruction of certain personal property that it would have

yielded evidence harmful to the government. But to warrant

5

Romo-Chavez’s fallback argument relating to the agents’s failure to

record is similarly without merit. Whether or not a recording is made has

no bearing on whether the translator’s statements may be fairly attributed

to the defendant. And as we have routinely said, suppression is not war-

ranted simply because the government fails to record an interview. United

States v. Smith-Baltiher, 424 F.3d 913, 925-26 (9th Cir. 2005).

5688 UNITED STATES v. ROMO-CHAVEZ

such an instruction, a criminal defendant must establish (1)

that the evidence was destroyed in bad faith, and (2) that he

was prejudiced by its destruction. United States v. Artero, 121

F.3d 1256, 1259 (9th Cir. 1997); United States v. Jennell, 749

F.2d 1302, 1308-09 (9th Cir. 1984); accord Arizona v. Young-

blood, 488 U.S. 51, 58 (1988); United States v. Laurent, 607

F.3d 895, 902 (1st Cir. 2010) (stating that an adverse infer-

ence “instruction usually makes sense only where the evi-

dence permits a finding of bad faith destruction; ordinarily,

negligent destruction would not support the logical inference

that the evidence was favorable to the defendant”); Lunnon v.

State, 710 A.2d 197, 199 n.3 (Del. 1998) (adopting a different

rule under state law but describing federal rule as a “bright

line due process test of police bad faith”).

We acknowledge that our standard in civil cases differs

somewhat. But the bad faith requirement, absent from the

general civil standard, exists in criminal cases because it “lim-

its the extent of the police’s obligation to preserve evidence

to reasonable bounds and confines it to that class of cases

where the interests of justice most clearly require it.” Young-

blood, 488 U.S. at 58; see also Illinois v. Fisher, 540 U.S.

544, 547-48 (2004) (per curiam).

[10] As Romo-Chavez concedes, there was no bad faith

shown in this case. Therefore, the district court did not err.

IV

Finally, Romo-Chavez argues that even if he was not preju-

diced by any single error, the cumulative effect of multiple

errors requires reversal. Because the district court committed

no error, Romo-Chavez cannot be entitled to such relief.

United States v. Jeremiah, 493 F.3d 1042, 1047 (9th Cir.

2007).

AFFIRMED.

UNITED STATES v. ROMO-CHAVEZ 5689

BERZON, Circuit Judge, concurring:

I disagree with the majority as to the question whether

Agent Hernandez spoke Spanish well enough that he could

reasonably be viewed in his role as out-of-court translator as

a “conduit” for Romo-Chavez, thereby precluding application

of the hearsay rule with regard to the statements he made to

Agent Simboli. In the context of the rest of the record in this

case, however, the admission of Agent Hernandez’s transla-

tion was harmless. I therefore concur in the result as to the

Nazemian issue. See United States v. Nazemian, 948 F.2d 522

(9th Cir. 1991). I also concur in the remainder of the majority

opinion, albeit with the same caveat regarding the survival of

Nazemian after Crawford v. Washington, 541 U.S. 36 (2004),

as I expressed in United States v. Hieng, ___ F.3d ___, No.

09-10401, 2012 WL 1655934 (9th Cir. May 11, 2012) (Ber-

zon, J., concurring).1

I.

The record establishes that Hernandez’s grasp of Spanish

was quite weak — much weaker than the majority opinion

makes it out to be.

1

In Hieng, I state in my concurring opinion that Nazemian is not so

“ ‘clearly irreconcilable’ ” with Crawford, as to permit a three-judge panel

to overrule Nazemian. 2012 WL 1655934, at *11 (Berzon, J., concurring)

(quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)).

In particular, Nazemian places the translator’s version of a statement

beyond the scope of Confrontation Clause analysis altogether, a holding

that would, if correct, seem to survive the fundamental alteration in Con-

frontation Clause analysis wrought by Crawford. Nonetheless, as I explain

in my concurring opinion in Hieng, I am of the view that Nazemian’s

holding does ultimately rest on a pre-Crawford understanding of the unity

between hearsay concepts and Confrontation Clause analysis. See id. at

*15 (Berzon, J., concurring). The notion that a translator’s out-of-court

version of a testimonial statement need not be subject to cross-

examination seems in great tension with Melendez-Diaz v. Massachusetts,

129 S. Ct. 2527 (2009) and Bullcoming v. New Mexico, 131 S. Ct. 2705

(2011), which hold that laboratory reports may not be admitted without

testimony by the persons who conducted the laboratory tests. Id.

5690 UNITED STATES v. ROMO-CHAVEZ

For example, although the opinion says that Hernandez

“grew up . . . speaking Spanish,” Hernandez actually testified

that he “grew up listening to Spanish.” In other words, Her-

nandez’s parents spoke to him in Spanish. Many people grow

up with relatives speaking to them in another language, which

they can therefore understand to a degree but not necessarily

speak. See Friedemann Pulvermüller & John H. Schumann,

Neurobiological Mechanisms of Language Acquisition, 44

Language Learning 681, 685 (1994); see also Lily Wong Fil-

more, When Learning a Second Language Means Losing the

First, 6 Early Childhood Res. Q. 323, 324 (1991) (observing

that “[f]ew American-born children of immigrant parents are

fully proficient in the[ir] ethnic language” and that “[o]nce

these children learn English, they tend not to maintain or to

develop the languages spoken at home, even if it is the only

one their parents know”); Merrill Swain, The Output Hypoth-

esis and Beyond: Mediating Acquisition through Collabora-

tive Dialogue, in Sociocultural Theory and Second Language

Learning 97 (James P. Lantolf ed., 2000) (discussing studies

showing that the “output” of language through speaking and

writing is critical to the acquisition of a foreign language).

Further, the opinion leaves the impression that Hernandez

studied Spanish extensively; in fact, he did so only from fifth

to seventh grade and then, again, for two years in high school,

which he completed in the 1980s. Unfortunately, language

teaching and learning in this country are such that this degree

of education in a language is extremely unlikely to lead to any

degree of fluency. See, e.g., Center for Applied Second Lan-

guage Studies, Univ. of Or., What Proficiency Level Do High

School Students Achieve? 2 (2010) (reporting that, after four

years of high school level foreign language instruction in the

United States, fewer than four percent of students achieve an

“intermediate mid”2 level of speaking proficiency).

2

The American Council on the Teaching of Foreign Languages

(ACTFL) has characterized foreign language speakers at the “intermediate

UNITED STATES v. ROMO-CHAVEZ 5691

Similarly, the majority opinion embroiders the record, at

least by implication, when it says that Hernandez spoke Span-

ish at home with his first and second wives. Hernandez did

testify that both of his wives spoke Spanish, and that he

speaks Spanish daily in his personal life. But he also testified

that both of his wives spoke English too, and that he could

“communicate very easily” with them in English. It is thus

unclear whether Hernandez’s “daily” use of Spanish at home

consisted of a few words or phrases a day, or whether he

spoke Spanish extensively with his wives. His demonstration

of his Spanish abilities at the trial, discussed below, suggests

the former.

No more convincing as to Hernandez’s fluency in Spanish

is the majority’s statement that Hernandez conducted inter-

views in Spanish on a regular basis. In fact, Hernandez testi-

fied that he had conducted only around 20 investigative

interviews for border agents, of the type at issue here, in the

past three years. Hernandez’s main use of Spanish at work

consisted instead of taking sworn statements, including “bio-

graphical questions and such,” while processing non-U.S. citi-

zens at the passport control station at the border. Given the

disparate contexts of passport control and criminal interroga-

tion, it is difficult to see how Hernandez’s experience in tak-

ing sworn statements adequately equipped him with the

Spanish language skills necessary to interpret Agent Sim-

boli’s interrogation of Romo-Chavez. Moreover, there is no

indication in the record as to the accuracy with which Her-

mid” level as those capable of “handl[ing] successfully a variety of

uncomplicated communicative tasks in straightforward social situations,”

whose “[c]onversation is generally limited to those predictable and con-

crete exchanges necessary for survival in the target culture,” who “have

difficulty linking ideas, manipulating time and aspect, and using commu-

nicative strategies” when called on to perform functions or handle topics

at the advanced level, and who “are generally understood by sympathetic

interlocutors accustomed to dealing with non-natives.” Am. Council on

the Teaching of Foreign Lang., ACTFL Proficiency Guidelines 7 (2012).

5692 UNITED STATES v. ROMO-CHAVEZ

nandez either translated interrogations or took sworn state-

ments.

Hernandez’s trial testimony confirmed that his command of

Spanish was far from dependable. Quite aside from the

request that he recite from memory the Spanish version of

Miranda warnings — a task that did not necessarily depend

on language proficiency,3 as the majority notes — Hernandez

was asked to translate in court a short (around 60-word)

“waiver of rights” from the ICE Miranda form that he had

gone over with Romo-Chavez. His translation was then com-

pared with that of the court interpreter. The two translations

were generally consistent, but were inconsistent in some ways

that could matter when reporting what a potential criminal

defendant said about his activities.

For example, the court interpreter translated the phrase “me

han leido” as “they have read to me,” whereas Hernandez

translated it is “I have read.” Obviously, such a transposition

of subject and object could matter mightily when a suspect is

giving his story in reponse to questioning. Similarly, Her-

nandez translated a phrase as “I sign this document,” whereas

the interpreter translated it as “I have signed this document.”

As with the subject/object error, this kind of verb tense mis-

take is one that someone with a good grasp of Spanish should

not be making. Moreover, it is again the kind of error that

could result in a suspect being represented as having told one

story whereas in fact he told another, with a material discrep-

ancy between the two.

3

Nonetheless, Hernandez did make mistakes that reflected on his Span-

ish abilities while attempting to perform this task. For example, he trans-

lated the word “questions” as “preguntos” rather than “preguntas,” thereby

mistaking the gender of the noun. Such an error is not necessarily innocu-

ous. For example, the Spanish term “derecha” means “right,” as in the

opposite of “left,” whereas the term “derecho” means “right,” as in a

human right or constitutional right. See Oxford Spanish Dictionary 256

(3d ed. 2003).

UNITED STATES v. ROMO-CHAVEZ 5693

Nor were these errors momentary lapses. Hernandez testi-

fied that he didn’t know “the grammar rules for application to

the Spanish language.” He also indicated that he relied on his

wife for help with tenses when trying to complete sentences.

For instance, she would correct him if he confused the phrase

“I wanted to go” with “I went.”

While Hernandez testified that he “more commonly” made

mistakes in verb tense, the cross-examination revealed that his

Spanish vocabulary also had significant limitations. At one

point, for example, Romo-Chavez’s attorney asked Hernandez

to translate four sentences from Spanish to English, which the

court interpreter subsequently translated as, “I am Juan

Dominquez. I live there near Phoenix. I’m going on a trip for

pleasure and business. But in this business I had an accom-

plice that already gave a statement.” Hernandez was able to

translate only the first two sentences. Explaining his inability

to translate the third and fourth sentences, Hernandez stated,

“I have never heard those words before.” Translation is an

exacting task, for which professional translators train for

many years. See generally Bureau of Labor Statistics,

Interpreters and Translators, in Occupational Outlook Hand-

book (2010-11 ed.), http://www.bls.gov/oco/pdf/ocos175.pdf.;

Developing Professional-Level Language Proficiency (Betty

Lou Leaver & Boris Shekhtman eds., 2002). Even fully com-

petent translators and interpreters disagree about the proper

transformation of one language into another; that is why there

are over ten translations of War and Peace, for example,

listed for sale by Amazon. While we need not hold that an

out-of-court translator must be qualified to be a court inter-

preter — or a translator of novels — to meet the Nazemian

standard, some high degree of reliability is necessary. The

very concept of a “conduit” — especially where the defendant

had nothing to do with choosing the translator — suggests

accuracy, if not elegance, in converting what the defendant

said in one language to another. Where the interpreter’s back-

ground and tested proficiency does not confirm the capacity

for such accuracy, the entire premise on which Nazemian

5694 UNITED STATES v. ROMO-CHAVEZ

stands — shaky though it may be with regard to the Confron-

tation Clause after Crawford, 541 U.S. 36, see Hieng, 2012

WL 1655934, at *15 (Berzon, J., concurring) — collapses.

Romo-Chavez testified that he understood only 30-40% of

what Hernandez said to him, which would have consisted pri-

marily of Miranda warnings and questions. Of course, there

is ample reason to think this estimate self-serving. But even

if Hernandez’s accuracy, or comprehensibility, was much

higher, there could easily have been mistakes in translation

concerning grammar and verb tense that mattered.

For example, with respect to the question of where Romo-

Chavez planned to exchange the two shirts, Simboli testified

that Hernandez told him that Romo-Chavez first said Phoenix

but then changed his answer to the Tucson Mall. However,

what Romo-Chavez actually said may have been that he

would have gone to the Tucson Mall had he not had other

business in Phoenix. Alternatively, he might have said that he

had been to the Tucson Mall before (which, as Romo-Chavez

testified during trial, he had been) but was going near Phoenix

this time.4 Of course, we don’t know that he said either one,

but the sorts of verb tense errors we know Hernandez did

make could lead to such mistakes.

Similarly, even a subtle misuse of vocabulary could have

mattered here. For example, Simboli testified that, in response

to a question he did not quite remember, Romo-Chavez told

him, “Everything in the car is mine.” In contrast, Romo-

Chavez testified that he told Simboli, through Hernandez,

only that the clothes and documents in the car were his.

Whereas Simboli may have intended to ask whether Romo-

Chavez acknowledged ownership of everything in the entire

car (that is, including the gas tank), the question that Her-

nandez posed to Romo-Chavez, given Hernandez’s word use

4

Romo-Chavez agreed that he “went to a place near Phoenix, Scotts-

dale,” and that he was “going to go to Dillard’s in Scottsdale.”

UNITED STATES v. ROMO-CHAVEZ 5695

difficulties, may actually have been whether he owned every-

thing inside the car—that is, the interior cabin. Such a dis-

crepancy could constitute the difference between a seeming

confession and an innocuous admission.

I explained in my concurrence in Hieng that Nazemian

should be reconsidered en banc in an appropriate case with

regard to its Confrontation Clause holding. See 2012 WL

1655934, at *15 (Berzon, J., concurring). But, as this case

illustrates, Nazemian will retain importance as a hearsay pre-

cedent even if it is determined that the Confrontation Clause

requires that the interpreter be available for cross-

examination. Here, Hernandez was available for cross-

examination and was extensively cross-examined. He did not,

however, remember any details of this particular interpreta-

tion session, as is understandable and as will often be the

case. As the majority holds, the Confrontation Clause is satis-

fied by the opportunity to cross examine, even if the person

examined does not remember enough to be useful. Maj. Op.

at 5687. So, in this species of case, it is often compliance with

the Nazemian requisites—particularly, enough language com-

petence that the interpreter’s statements can be viewed as

those of the suspect (or other interviewee)—that will be the

protection against inaccurate translation prejudicial to the

defendant.

Obviously, precisely because the defendant does not know

English, he is in no position to judge the accuracy of the

translation at the time it is occurring. Where, as here, his

defense at trial is, in part, that he did not say during the out-

of-court interview what the translator says he said, some

meaningful assessment of the language competence of the

translator is essential. Hernandez was not sufficiently compe-

tent that he could be viewed as a “conduit” such that his state-

ments could be taken as those of Romo-Chavez, eliminating

what would otherwise be a hearsay problem. Indeed, Her-

nandez conceded at trial that he did not consider himself to be

fluent in Spanish.

5696 UNITED STATES v. ROMO-CHAVEZ

One additional note: It does not seem to me to be too much

to ask to require that the Department of Homeland Security

(DHS) have competent, trained interpreters available at the

border to interview suspects (and others), at least in Spanish.

Or, better, DHS could record all the interrogations, so that the

actual interchange can be available to the parties and the jury

(with the help of certified interpreters). Alternatively, law

enforcement can wait to interview arrested suspects until there

is a competent intermediary available. Here and in many other

instances, what was found in the car was sufficient to estab-

lish probable cause and therefore to arrest Romo-Chavez;

there was no exigent reason to interview him before a compe-

tent interpreter could be found.

Errors in translation do occur, and can be critical. See, e.g.,

Grigoryan v. Mukasey, 277 Fed. Appx. 742, 744 (9th Cir.

2008) (granting a motion to reopen an alien’s removal pro-

ceedings, where a hearing transcript incorrectly stated that

“[the alien] testified to being attacked because her mother was

a ‘cook’ rather than a ‘Turk,’ ” an error that went to “the heart

of her claim” of having been persecuted based on a protected

ground). This court has recognized that “an incorrect or

incomplete translation is the functional equivalent of no trans-

lation.” Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir.

2000). We should not bend the hearsay rules out of shape so

as to treat statements by one person as if they were statements

by another, unless the equivalence is proven. Here, it was not.

II.

In the end, however, I would hold the error in admitting

Hernandez’s hearsay statements in this case to be harmless

error, for three reasons.

First, Agent Simboli’s testimony of what Romo-Chavez

said, via Hernandez’s translation, did not contain any specific

admission from Romo-Chavez that he knew of the drugs in

the gas tank. Instead, the government used Simboli’s testi-

UNITED STATES v. ROMO-CHAVEZ 5697

mony only to attack through contradictions the story Romo-

Chavez told at trial. And much of what Agent Simboli

reported that Romo-Chavez told him — or did not tell him —

via Hernandez was similar to what two other border agents,

Agents Tipling and Aldrich, who separately spoke to Romo-

Chavez, reported. Romo-Chavez does not challenge Agent

Tipling’s or Agent Aldrich’s reports of what he said in Span-

ish as hearsay. Both officers, like Agent Simboli, for whom

Hernandez translated, testified to statements that contradicted

Romo-Chavez’s story at trial.

Moreover, Romo-Chavez’s story at trial changed drasti-

cally during cross-examination, as he was confronted with

evidence concerning his ongoing relationship with Vargas-

Diaz, the individual who, according to Romo-Chavez’s testi-

mony, must have placed the drugs in the car he drove across

the border. For example, Romo-Chavez initially testified that

he ran into Vargas-Diaz only one time, by coincidence, in

Nogales. Later, however, he admitted to meeting Vargas-Diaz

in Nogales between six to eight times. Similarly, Romo-

Chavez at first claimed to have never called Vargas-Diaz, but

subsequently said that he had called him about three times. At

the outset, Romo-Chavez also said that the two ran into each

other by coincidence at the Tucson Mall, but he later admitted

that Vargas-Diaz knew that he would be there, because the

men had spoken beforehand by phone.

The government also introduced extensive evidence that

Romo-Chavez and Vargas-Diaz drove the same two cars

across the border at different times. Romo-Chavez made a

total of about thirteen trips across the border in those two cars,

while Vargas-Diaz made a total of about twelve trips. In addi-

tion, the government presented evidence that the two men

crossed the border simultaneously approximately thirteen

times, evidence inconsistent with Romo-Chavez’s representa-

tions that he knew Vargas-Diaz very casually and had no role

in any cross-border transactions in which he engaged.

5698 UNITED STATES v. ROMO-CHAVEZ

Given these aspects of the record, as well as the basic fact

that drug smugglers are unlikely to entrust hundreds of thou-

sands of dollars of drugs to an unknowing driver, cf. United

States v. Toro-Barboza, Nos. 10-50487, 10-50491, 2012 WL

833905, at *4 (9th Cir. Mar. 14 2012), the jury likely would

have disbelieved Romo-Chavez’s version of events even

without the report of Simboli’s interrogation. If they did, then

there was ample evidence from which the jury could have

inferred that Romo-Chavez was working with, rather than

duped by, Vargas-Diaz, whom he identified as the source of

the car and of the drugs.

Finally, Romo-Chavez had ample opportunity to cross-

examine Hernandez as to his language competence. Given the

lack of competence Hernandez both displayed and admitted

to, the likelihood that the jury put much credence in Simboli’s

report, as opposed to all the other evidence, is quite low.

Critically, the Nazemian error was an evidentiary one only,

not of constitutional dimensions. So the government’s harm-

less error burden is only to show it is more likely than not that

the same result would have been reached absent Agent Sim-

boli’s report of his interrogation of Romo-Chavez. See United

States v. Gomez-Flores, 418 F.3d 1093, 1099 (9th Cir. 2005).

In combination, the strength of the government’s circumstan-

tial evidence, the many other reasons that the jury had for dis-

believing Romo-Chavez’s testimony, and the effective cross-

examination of Hernandez regarding his Spanish competence,

more than meet the government’s burden of demonstrating

that the evidentiary error was harmless.

Conclusion

For the reasons I have explained, I concur only in the result

with regard to the Nazemian issue.

The district court characterized the competence of the

translator as “marginal.” I believe even that begrudging char-

UNITED STATES v. ROMO-CHAVEZ 5699

acterization to be clearly erroneous, for the reasons I have

given. But even if not clearly erroneous, the district court’s

assessment of Hernandez’s ability as an interpreter is surely

one as to which another district judge could have ruled other-

wise without committing clear error. Thus, if DHS continues

to provide translators who are untrained, untested, and of, at

best, “marginal” competence, and also continues not to record

interrogations involving an interpreter, it will be unnecessarily

risking the validity of the resulting convictions.