Opposition Brief — Harbans Singh, Petitioner v. United States

No. 22-7604

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

HARBANS SINGH, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Acting Assistant Attorney General

JAVIER A. SINHA

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

petitioner’s

Confrontation

Clause

rights

were

violated when an asylum officer testified at trial to statements

that petitioner made, through interpreters who did not testify,

during an asylum interview.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 22-7604

HARBANS SINGH, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-4a) is not

published in the Federal Reporter but is available at 2022 WL

17749250.

JURISDICTION

The judgment of the court of appeals was entered on December

19, 2022.

A petition for rehearing was denied on February 16,

2023 (Pet. App. 5a).

The petition for a writ of certiorari was

filed on May 17, 2023.

The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

2

STATEMENT

Following a jury trial in the United States District Court

for the Western District of Washington, petitioner was convicted

of

making

a

false

statement

on

an

immigration

document,

in

violation of 18 U.S.C. 1546(a) and 2; accepting, possessing, and

using an immigration document procured by fraud, in violation of

18 U.S.C. 1546(a) and 2; and making a false statement to a

department or agency of the United States, in violation of 18

U.S.C. 1001(a)(2).

C.A. E.R. 79.

petitioner to time served.

affirmed.

1.

The district court sentenced

Id. at 80.

The court of appeals

Pet. App. 1a-4a.

Petitioner, a citizen of India, had been living in the

United Kingdom for several years when, in November 2014, he was

arrested twice in London for sexually assaulting girls under the

age of 15.

Presentence Investigation Report (PSR) ¶ 7; C.A. Supp.

E.R. 139, 556.

After each arrest, petitioner was charged, held in

custody overnight, and then released on bail.

C.A. Supp. E.R.

556-558, 566-572, 575-577.

That same month, petitioner applied for a tourist visa to

travel to the United States.

PSR ¶ 8.

In his visa application,

petitioner answered “No” to a question about whether he had “ever

been arrested or convicted for any offense or crime.”

Supp. E.R. 596-597.

Ibid.; C.A.

Petitioner also stated in that application

3

that he spoke English in addition to Punjabi and Hindi.

C.A. Supp.

E.R. 596.

Petitioner was issued the visa and used it to enter the United

States in January 2015.

PSR ¶ 8.

Petitioner then failed to appear

for his scheduled return flight to the United Kingdom.

Ibid.

In

May 2015, a court in the United Kingdom convicted petitioner in

absentia on three sexual-assault charges and sentenced him to one

year in prison.

2.

States.

Ibid.; C.A. Supp. E.R. 271.

In July 2015, petitioner applied for asylum in the United

PSR ¶ 9.

In his application materials, petitioner

concealed his arrests and convictions in the United Kingdom.

Ibid.; C.A. Supp. E.R. 655–656, 744–745.

In September 2017, a Department of Homeland Security (DHS)

asylum officer interviewed petitioner in person as part of the

asylum application process. C.A. Supp. E.R. 744, 759. Two Punjabi

interpreters took part in the asylum interview.

Id. at 757.

One

interpreter was chosen by and brought by petitioner to translate

for him in person.

Id. at 529, 532-533, 715, 754-755.

A second

government-certified interpreter (called a “monitor”) participated

in the interview by phone to ensure the accuracy of the first

interpreter’s translations.

Id. at 713–715, 757–758.

The asylum officer began the interview by instructing the

interpreters

to

translate

her

statements

and

petitioner’s

4

statements “word-for-word

anything.”

* * *

without adding or subtracting

C.A. Supp. E.R. 756-757.

understood his interpreter.

Petitioner confirmed that he

Id. at 757.

The asylum officer then

explained to petitioner that the purpose of the interview was for

him to explain why he was applying for asylum and for the officer

to gather the necessary information to make a decision.

759.

Id. at

The officer put petitioner under oath and he was told that

he could face criminal consequences if he lied.

Id. at 760-762.

Petitioner confirmed that he understood and signed an oath form.

Ibid.

During the interview, petitioner repeatedly answered “No”

to questions aimed at eliciting whether he had ever been arrested,

detained, or interrogated by law enforcement.

PSR ¶ 9; C.A. Supp.

E.R. 767-770.

3.

of

In November 2020, a grand jury in the Western District

Washington

returned

a

superseding

indictment

charging

petitioner with making a false statement on an immigration document

(his visa application), in violation of 18 U.S.C. 1546(a) and 2;

accepting, possessing, and using an immigration document procured

by fraud, in violation of 18 U.S.C. 1546(a) and 2; and making a

false statement during an asylum interview, in violation of 18

U.S.C. 1001(a)(2).

C.A. E.R. 150-152.

Before trial, the government indicated that it might call the

two interpreters from petitioner’s asylum interview as witnesses.

5

C.A. Supp. E.R. 302.

Both interpreters, however, had medical

issues potentially affecting their ability to travel and testify

in person.

Id. at 49, 302, 310-312, 494-495.

The government

raised the possibility of the interpreters testifying by two-way

videoconference -- an arrangement the government had agreed to for

a number of petitioner’s witnesses -- but petitioner objected.

Id. at 302, 310–311.

counsel

whether

the

interpreters’ testimony would be necessary or appropriate.

See

id.

the

at

offered

In explaining that objection, petitioner’s

302-303

conflicting

(stating

that

statements

counsel

about

did

not

understand

“relevance” of the interpreters’ testimony, but that if they

offered “habit testimony,” that would need to be confronted); id.

at 306 (suggesting that the interpreters’ testimony might not be

necessary unless defense counsel “open[ed] the door” to it); id.

at 308 (stating that the “safer bet is to just allow them to

testify

and

just

let

me

cross-examine

them”);

id.

at

309

call

the

(suggesting that the issue be deferred until trial).

After

the

government

ultimately

chose

not

to

interpreters as witnesses, petitioner objected on the theory that

the interpreters’ testimony would be constitutionally required if

the asylum officer testified about petitioner’s answers in the

interview, C.A. Supp. E.R. 35, 39-40.

The district court held an

evidentiary hearing on petitioner’s objection on the second day of

6

trial.

Id.

at

505.

The

interpreters

testified

by

two-way

videoconference, and petitioner’s counsel cross-examined them.

Id. at 506-520.

Both interpreters testified that they did not

remember petitioner’s interview.

Following

the

hearing,

Id. at 508, 511, 513-514, 520.

the

district

petitioner’s Confrontation Clause objection.

536.

Applying

circuit

precedent,

the

court

overruled

C.A. Supp. E.R. 532-

court

found

that

the

interpreters acted only as a “language conduit” for petitioner in

the interview, such that the translated statements were properly

treated as petitioner’s own and their admission did not raise a

confrontation issue.

Id. at 532; see id. at 532–534.

The trial

resumed, and in his closing argument, counsel for petitioner argued

that the government’s failure to call the translators as witnesses

should

create

reasonable

petitioner’s guilt.

79.

doubt

in

the

jurors’

minds

about

Id. at 1026-1027.

The jury found petitioner guilty on all counts.

C.A. E.R.

The district court sentenced him to time served.

Id. at 80.

4.

The court of appeals affirmed petitioner’s convictions

in an unpublished memorandum disposition.

Pet. App. 1a-4a.

With

respect to the confrontation issue, the court of appeals found

that the district court did not err in determining that the

translators

acted

as

petitioner’s statements.

language

conduits

Id. at 3a-4a.

in

interpreting

The court accordingly

7

applied its prior decision in United States v. Nazemian, 948 F.2d

522 (9th Cir. 1991), cert. denied, 506 U.S. 835 (1992), and

reasoned that the asylum officer’s testimony about petitioner’s

statements therefore did not implicate the Confrontation Clause,

Pet. App. 3a-4a.

Relying on its prior decision in United States

v. Hieng, 679 F.3d 1131 (9th Cir. 2012), the court also rejected

petitioner’s argument that Nazemian had been abrogated by Crawford

v. Washington, 541 U.S. 36 (2004).

Pet. App. 4a.

ARGUMENT

Petitioner renews his claim (Pet. 7-12) that the admission,

through the asylum officer, of his translated statements to the

officer during his asylum interview violated the Confrontation

Clause because the interpreters at his interview did not also

testify.

That claim lacks merit.

correctly

recognized

--

in

As the court of appeals

agreement

with

the

overwhelming

majority of the courts of appeals and state high courts to address

the issue post-Crawford -- the interpreters acted only as language

conduits

for

petitioner’s

own

statements,

and

the

relevant

declarant for constitutional purposes was therefore petitioner

himself.

In

addition,

the

statements

in

this

case

were

nontestimonial and would present no confrontation issue even if

they were treated as those of the interpreters.

This Court has

repeatedly denied petitions for certiorari raising Confrontation

8

Clause challenges to the admission of translated statements. *

The

same result is warranted here.

1.

The

Confrontation

Clause

provides

that

“[i]n

criminal prosecutions, the accused shall enjoy the right

to be confronted with the witnesses against him.”

Amend. VI.

all

* * *

U.S. Const.

In Crawford v. Washington, 541 U.S. 36 (2004), this

Court construed that provision in light of “the common-law history

of the confrontation right,” Michigan v. Bryant, 562 U.S. 344, 353

(2011) (citing Crawford, 541 U.S. at 50), and held that absent a

prior opportunity for cross-examination, testimonial hearsay by a

witness adverse to the defendant is generally barred by the Clause,

Crawford, 541 U.S. at 68.

This Court has reinforced in cases

following Crawford that the Confrontation Clause “applies only to

witnesses ‘against the accused,’” Samia v. United States, 143

S. Ct. 2004, 2012 (2023) (citation omitted), and applies only to

statements

that

constitute

“testimonial

hearsay,”

Davis

v.

Washington, 547 U.S. 813, 823 (2006) (citation omitted); see

Bryant, 562 U.S. at 354-355, 359 n.5.

See Lopez-Ramos v. Minnesota, 140 S. Ct. 845 (2019) (No.

19-5936); Ye v. United States, 579 U.S. 903 (2016) (No. 15-1002);

Santacruz v. United States, 570 U.S. 919 (2013) (No. 12-6807);

Budha v. United States, 568 U.S. 1164 (2013) (No. 12-7148); see

also Garcia-Chicol v. Arkansas, 141 S. Ct. 880 (2020) (No. 205834) (argument raised in statement of case but not listed as

question presented).

*

9

The lower courts in this case correctly determined that

petitioner’s confrontation right was not violated because the

interpreters acted only as “language conduits” for petitioner

during his asylum interview.

Pet. App. 3a-4a; see C.A. Supp. E.R.

532-534.

were

The

statements

therefore

non-hearsay

party

admissions falling outside the Confrontation Clause.

See Fed. R.

Evid.

statements

801(d)(2)(A)

(providing

that

a

party’s

own

offered against him at trial are not hearsay).

And as the courts

of

not

appeals

have

admissibility

of

criminal trial.

recognized,

a

Crawford

defendant’s

does

out-of-court

affect

admissions

the

at

a

See, e.g., United States v. Tragas, 727 F.3d 610,

615 (6th Cir. 2013); United States v. Crowe, 563 F.3d 969, 976

n.12 (9th Cir. 2009); United States v. Ramos-Cardenas, 524 F.3d

600, 609-610 (5th Cir.) (per curiam), cert. denied, 555 U.S. 908,

and 555 U.S. 949 (2008); United States v. Tolliver, 454 F.3d 660,

664-665 (7th Cir. 2006), cert. denied, 549 U.S. 1149 (2007).

The petition does not dispute the factual findings underlying

the

lower

courts’

conduits only.

treatment

of

the

interpreters

as

language

Instead, petitioner contends (Pet. 7) that the

Ninth Circuit’s precedent treating a translator as a conduit for

the speech of the foreign-language speaker “is at odds with this

Court’s holding in Crawford” and “based on this Court’s previous

precedent

in

Ohio

v.

Roberts,”

448

U.S.

56

(1980),

which

10

established a reliability standard that Crawford abandoned.

But

as the court of appeals recognized below (Pet. App. 4a), the

language-conduit standard is consistent with Crawford.

The language-conduit inquiry addresses the issue of whether

a particular out-of-court statement is hearsay -- i.e., whether

the out-of-court declarant is the interpreter or the individual

giving

the

statement

petitioner).

that

the

interpreter

translated

(here,

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

525-526 (9th Cir. 1991), cert. denied, 506 U.S. 835 (1992).

As

noted

the

above,

the

Confrontation

Clause

applies

only

if

challenged statement is third-party hearsay; the language-conduit

inquiry

addresses

that

threshold

question

and

is

therefore

analytically distinct from, and antecedent to, a determination of

whether the Confrontation Clause applies.

Crawford reassessed the

scope of the Confrontation Clause, but that decision did not

address what constitutes hearsay in the first instance.

As

petitioner

articulated

in

notes

Nazemian

(Pet.

for

8),

the

determining

four-factor

whether

test

interpreted

statements should be viewed as the interpreter’s or the original

declarant’s turns in part on issues related to the translation’s

reliability.

See 948 F.2d at 527.

But that limited role of

reliability does not contravene Crawford.

Any consideration of

reliability under the Nazemian test is relevant only to determining

11

to

whom

a

statement

is

attributable

(i.e.,

whether

the

Confrontation Clause applies at all), not to whether the Clause

has

been

satisfied

(the

reliability

standard

considered

and

rejected in Crawford, see 541 U.S. at 62-63).

In its 2012 decision in United States v. Hieng, 679 F.3d 1131,

(9th Cir.), cert. denied, 568 U.S. 1055 (2012), the Ninth Circuit

carefully analyzed and explained why Crawford does not disturb the

language-conduit standard.

Id. at 1139-1141.

Consistent with the

foregoing analysis, the court of appeals recognized that Crawford

and its progeny “make it clear that, if a testimonial statement is

introduced,

the

Sixth

Amendment

requires

opportunity

for

confrontation of the person who made the statement,” but those

decisions “do not address the question whether, when a speaker

makes a statement through an interpreter, the Sixth Amendment

requires the court to attribute the statement to the interpreter.”

Id. at 1140.

2.

Petitioner errs in claiming (Pet. 9-11) a conflict in

the lower courts that warrants this Court’s intervention.

Since

Crawford, three courts of appeals and two state courts of last

resort have issued published decisions addressing Sixth Amendment

challenges to the introduction of translated statements made by

the defendant or another witness.

Four of those five courts --

the Fourth and Ninth Circuits and the Arkansas and Minnesota

12

Supreme Courts -- have found no Confrontation Clause problem in

admitting

such

approaches.

testimony

based

on

agency

or

language-conduit

See United States v. Shibin, 722 F.3d 233, 235, 248-

249 (4th Cir. 2013) (plain-error posture), cert. denied, 572 U.S.

1089 (2014); Hieng, 679 F.3d at 1140-1141; Garcia-Chicol v. State,

597 S.W.3d 631, 638-639 (Ark.), cert. denied, 141 S. Ct. 880

(2020); State v. Lopez-Ramos, 929 N.W.2d 414, 417-423 (Minn. 2019),

cert. denied, 140 S. Ct. 845 (2020); see also United States v.

Budha, 495 Fed. Appx. 452, 454 (5th Cir. 2012) (per curiam), cert.

denied, 568 U.S. 1164 (2013) (adhering to the majority position in

an unpublished decision).

has held otherwise.

Only one court, the Eleventh Circuit,

See United States v. Charles, 722 F.3d 1319,

1321-1330 (2013) (concluding that it had been error to permit a

border patrol officer to testify “as to the out-of-court statements

made by an interpreter who translated [the defendant’s] Creole

language statements into English” during an interrogation).

That

shallow and lopsided disagreement does not warrant this Court’s

intervention.

3.

Further

review

is

especially

unwarranted

in

this

particular case, because even if the interpreters’ translations

during

the

asylum

interview

should

be

viewed

as

their

own

statements rather than petitioner’s, they were not testimonial.

The statements’ admission thus presented no Confrontation Clause

13

issue at all, and they would be admissible even in the Eleventh

Circuit.

A

statement

is

objectively indicate

“testimonial”

* * *

only

if

“the

circumstances

that [its] primary purpose” is to

establish “past events potentially relevant to later criminal

prosecution.”

Bryant, 562 U.S. at 356 (quoting Davis, 547 U.S. at

822); see Ohio v. Clark, 576 U.S. 237, 244-246 (2015) (statements

are not testimonial if they “were not made with the primary purpose

of creating evidence for [a defendant’s] prosecution”).

“Where no

such primary purpose exists, the admissibility of a statement is

the concern of state and federal rules of evidence, not the

Confrontation Clause.”

Bryant, 562 U.S. at 359.

And this Court

has made clear that “not all ‘interrogations by law enforcement

officers’ are subject to the Confrontation Clause.”

Id. at 355

(quoting Crawford, 541 U.S. at 53).

In

this

case,

the

translators’

testimonial for two independent reasons.

statements

were

not

First, the translators’

primary purpose in making those translated statements was simply

to facilitate communication between petitioner and the asylum

officer during the interview.

That purpose is mechanical; an

interpreter’s job is to provide that service to various speakers,

in various contexts, for various types of statements.

14

Second,

to

the

extent

the

purpose

of

the

interview

is

relevant, its primary purpose was to further the processing of

petitioner’s application for immigration relief, not to enable a

future

prosecution.

As

courts

of

appeals

have

recognized,

statements made for the purpose of immigration processing or

immigration relief do not qualify as testimonial.

See, e.g.,

United States v. Santos, 947 F.3d 711, 729 (11th Cir. 2020),

(recognizing

that

DHS

officer’s

annotations

on

defendant’s

naturalization application were nontestimonial because they were

made “for the primary purpose of determining [the defendant’s]

eligibility for naturalization” (citation omitted)), cert. denied,

141 S. Ct. 1048 (2021); United States v. Lang, 672 F.3d 17, 22–23

(1st Cir.) (same), cert. denied, 566 U.S. 1041 (2012); United

States

v.

Caraballo,

595

F.3d

1214,

1229

(11th

Cir.

2010)

(recognizing that information in an agent-generated immigration

form was nontestimonial because the form “is primarily used as a

record by the [government] for the purpose of tracking the entry

of aliens into the United States”).

That is so even if “an

incidental or secondary use of the [immigration] interviews” and

forms “actually furthered a prosecution.”

Caraballo, 595 F.3d at

1229.

Here, as the asylum officer explained to petitioner at the

interview’s outset, the “purpose” of the interview was for him to

15

explain “why he was applying for asylum and for [the officer] to

gather the necessary information to make a decision.”

E.R. 759.

C.A. Supp.

Although the asylum officer and her agency had learned

of petitioner’s arrests in the United Kingdom at the time of the

interview,

their

information

was

“incomplete”

awaiting more information from U.K. authorities.

878–879.

and

they

were

Id. at 721-723,

And the asylum officer testified that she would have

been required to ask petitioner about his criminal history as part

of the asylum interview regardless.

Id. at 725, 739-740.

The

primary purpose of the interview was thus immigration processing,

not criminal prosecution.

Because the statements here were not testimonial, they would

have been admitted even under the outlier approach of the Eleventh

Circuit.

While

nontestifying

that

court

interpreter

in

has

excluded

translations

the

context

of

a

by

a

border-patrol

interrogation, see Charles, 722 F.3d at 1321, it has elsewhere

recognized

that

statements

made

for

the

primary

purpose

of

determining the defendant’s eligibility for immigration benefits

are not testimonial, even if they later become relevant in a

prosecution, see Caraballo, 595 F.3d 1214 at 1229; see also United

States v. Garcia-Solar, 775 Fed. Appx. 523, 529 (11th Cir. 2019)

(per curiam) (describing Charles as holding “that statements to an

interpreter

are

testimonial

when

they

are

made

during

an

16

interrogation where the defendant is detained and suspected of a

crime”), cert. denied, 140 S. Ct. 2519 and 140 S. Ct. 2520 (2020).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Acting Assistant Attorney General

JAVIER A. SINHA

Attorney

AUGUST 2023