Petition for Writ of Certiorari — Halim Khan, Petitioner v. United States

No. _________

IN THE SUPREME COURT OF THE UNITED STATES

HALIM KHAN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Bruce Berline

LAW OFFICE OF BRUCE BERLINE, LLC

Security Title Building, 2nd Floor

Isa Drive, Capitol Hill

P.O. Box 5862 CHRB

Saipan, MP 96950

Telephone: (670) 233-3633

Email: bberline@gmail.com

Attorney for Petitioner Halim Khan

I.

QUESTION PRESENTED

The Sixth Amendment’s Confrontation Clause 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.

The question presented is:

Whether translated out-of-court testimonial statements may be admitted by

the Government as evidence against a defendant without providing the defendant

with an opportunity to cross-examine the interpreter, and without violating the

Confrontation Clause of the U.S. Constitution, simply because the interpreter is

deemed by the trial judge to be either an agent of the defendant or to have acted

as a language conduit.

i

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

RELATED PROCEEDINGS

•

United States v. Khan, No. 23-480, U.S. Court of Appeals for the Ninth Circuit.

Judgment entered July 23, 2024.

•

United States v. Khan, et al., No. 1:20-cr-0007, U.S. District Court for the

Northern Mariana Islands. Judgment entered March 10, 2023.

ii

TABLE OF CONTENTS

Question Presented ..................................................................................................... i

List of Parties .............................................................................................................ii

Related Proceedings ...................................................................................................ii

Table of Authorities ................................................................................................... iv

Opinions Below .............................................................................................................. 1

Jurisdiction ................................................................................................................... 1

Statutory provisions involved ...................................................................................... 1

Statement of the case .................................................................................................... 1

A. Background .................................................................................................... 2

B. Procedural history ......................................................................................... 5

Reasons for granting the petition ................................................................................. 6

A. This Court should grant review to decide whether United States v.

Nazemian has been overruled by Crawford v. Washington and its

progeny. ............................................................................................................... 7

1. This Court’s prior holdings make clear that the Confrontation

Clause’s cross-examination requirement is applicable even where

the statement at issue bears hallmarks of reliability ....................................... 8

2. Ninth Circuit precedent, as articulated in United States v.

Nazemian and its progeny, is inconsistent with this Court’s

holdings in Crawford, Melendez-Diaz, and Bullcoming ................................. 11

a. According to Ninth Circuit precedent, testimony regarding an

interpreter’s translations of a defendant’s testimonial

statements are admissible where the judge finds that the

interpreter was reliable, even where the defendant has no

opportunity to cross-examine the interpreter ........................................... 11

iii

b. The vitality of Nazemian has been challenged in the Ninth

Circuit and elsewhere, and a circuit split is emerging with

respect to the questions at issue ............................................................... 14

c. The Ninth Circuit’s holdings in Nazemian and its progeny

contravene this Court’s holdings in Crawford and its progeny

and must be corrected in order to preserve defendants’ Sixth

Amendment rights .................................................................................... 16

Conclusion ............................................................................................................... 20

Appendices ............................................................................................................... 1a

A. United States v. Khan, (Ninth Circuit Court of Appeals

Opinion, July 24, 2023)....................................................................................1a

B. United States v. Khan (Ninth Circuit Court of Appeals Order

Denying Petition for Rehearing, August 29, 2024) ................................... 7a

iv

TABLE OF AUTHORITIES

CASES

Bullcoming v. New Mexico, 564 U.S. 647 (2011)……………...........1, 6-8, 10-15, 17, 18

Crawford v. Washington, 541 U.S. 36 (2004)…………...…………….…1, 5-9, 11-17, 19

Lee v. Illinois, 476 U.S. 530 (1986) ...............................................................................8

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) ...........................1, 6-14, 17, 18

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)..................................................13

Ohio v. Roberts, 448 U.S. 56 1980).....................................................................9, 10, 16

Pointer v. Texas, 380 U.S. 400 (1965) ...........................................................................8

United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985)............................................16

United States v. Charles, 722 F.3d 1319 (11th Cir. 2013)................................7, 15, 16

United States v. Khan, No. 22-2716 (9th Cir. Filed June 6, 2023)...............................2

United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991)..........................2, 5-8, 11-20

United States v. Orm Hieng, 679 F.3d 1131 (9th Cir. 2012) ..........................12-15, 18

United States v. Romo-Chavez, 681 F.3d 955 (9th Cir. 2012) .............................14, 15

STATUTES

18 U.S.C. § 371..............................................………………………………….……………2

28 U.S.C. §1254…………………………………………………………………………….......1

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. VI……………………………….………….....................................1, 8

v

I.

OPINIONS BELOW

The opinion of the Ninth Circuit Court of Appeals regarding the question of

whether an interpreter’s out-of-court translation may be properly admitted without

any prior opportunity to cross-examine the interpreter is unreported. (App. A, 1a).

II.

JURISDICTION

The judgment of the Ninth Circuit Court of Appeals was entered on July 23,

2024. (App. A, 6a). The Ninth Circuit denied a timely petition for rehearing on August

29, 2024. (App. B, 7a). The jurisdiction of this Court is invoked under 28 U.S.C. §

1254(1).

III.

STATUTORY PROVISIONS INVOLVED

Under U.S. Const. Amend. VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the state and district wherein the crime

shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

IV.

STATEMENT OF THE CASE

In Crawford v. Washington, 541 U.S. 36 (2004), Melendez-Diaz v.

Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647

(2011), this Court firmly held that under the Sixth Amendment, without exception,

to admit an out-of-court testimonial statement for use against a criminal defendant,

the defendant must have an opportunity to cross-examine the declarant. Today,

twenty years after Crawford was decided, defendants’ constitutional rights continue

1

to be undermined, and even eliminated, by the Ninth Circuit Court of Appeals’

prevailing legal standards, under United States v. Nazemian, 948 F.2d 522 (9th Cir.

1991), and its progeny, which allows the admission of interpreters’ translations of

criminal defendants’ out-of-court, testimonial statements for use against the

defendant with no opportunity for cross-examination by substituting the jury’s

evaluation of the translator with a trial judge’s subjective determination.

The question at issue here is whether an interpreter’s out-of-court, testimonial

translations of a defendant’s statements may be properly admitted at trial against

the defendant where the defendant did not have an opportunity to cross-examine the

interpreter, without violating the defendant’s rights under the U.S. Constitution or

creating hearsay issues. This Court should grant review to clarify the scope of the

U.S. Constitution’s Sixth Amendment protections with respect to the admission of

extrajudicial, testimonial translations of a defendant made through an interpreter

without the opportunity to cross-examine the interpreter.

A. Background

On July 30, 2020, the Government indicted Halim Khan (“Mr. Khan”) and two

other co-defendants, Servillana Soriano (“Ms. Soriano”) and Aminul Islam, on the sole

count of Conspiracy to Defraud the United States in violation of 18 U.S.C. § 371. See

CA9 1-ER-2.1

See Excerpts of

Record, Volume 1 of 6, United States v. Khan, No. 22-2716 (9th Cir. filed June 6, 2023), ECF No. 45.

All other citations to the Ninth Circuit Excerpts of Record will be written as “CA9 #-ER-##” with the

first number indicating the volume and the second number indicating the page. See United States v.

Khan, No. 22-2716 (9th Cir. filed June 6, 2023), ECF Nos. 13.2, 13.3, 13.4, 13.5.

1 “1-ER- 2” refers to volume 1, page 2 of the Ninth Circuit Excerpts of Record.

2

After the indictment was amended, the operative Second Superseding

Indictment alleged that Mr. Khan and the other individuals conspired to defraud the

United States Citizenship and Immigration Service (“USCIS”) by “impeding,

impairing, obstructing, and defeating” its “fair and objective evaluation of petitions

to classify aliens as CW-1 workers.” 4-ER-646. The Government claimed that the

alleged conspiracy was a “fraudulent” non-immigrant petition for temporary workers

(the “Petition”) submitted to USCIS by petitioner RES International LLC (“RES” or

“the Company”). Id. The Petition sought approval for RES to employ three nonresident alien individuals as “CW-1 workers” in Saipan, Commonwealth of the

Northern Mariana Islands (“CNMI”) for a one-year term. Id. The CNMI, as well as

Saipan, are part of the United States of America. The CW-1 program allows foreign

workers in Saipan to be able to temporarily work in the CNMI under the purview of

the United States federal immigration system. 2-ER-100.

At trial, the Government sought to show that the Petition’s representation that

an “employer-employee relationship” existing between RES and the beneficiaries

under the employment terms set forth in the petition was false and fraudulent. 3-ER557. The Government claimed that Mr. Khan had an integral role in getting RES to

submit the Petition that falsely and fraudulently alleged that three men would be

employed by RES full-time. Id.

During the trial, the Government relied on testimony from Special Agent

Jonas, who interviewed Mr. Khan on June 11, 2020. 2-ER-69–70. Special Agent Jonas

questioned Mr. Khan for about three hours. 3-ER-397. Special Agent Jonas used a

3

Bengali interpreter, who was translating over the phone, to translate the

conversation between him and Mr. Khan. 3-ER-390–91. There was no evidence in the

record that the three hours of questioning was recorded or transcribed. The

prosecution did not enter, or even attempt to enter, any written statement by Mr.

Khan that was obtained during the interrogation. Accordingly, Special Agent Jonas

testified largely from his memory about what was said during the June 11, 2020

interrogation. 3-ER-390–91, 398. Because the interrogation occurred over two years

before trial, during his testimony, Special Agent Jonas had difficulty recalling,

exactly, what Mr. Khan had said (through the interpreter) during the interrogation.

3-ER-398.

To conduct Mr. Khan’s interrogation, Special Agent Jonas called a private

translation company on the phone and was provided with a randomly selected

interpreter. 3-ER-390–91. Special Agent Jonas had no information about the

interpreter that he used, not even the interpreter’s name. 3-ER-394–5. When asked,

Special Agent Jonas stated he had no information at all about the interpreter’s

qualifications. Id. Special Agent Jonas explained that he did not ask the interpreter

for any such information because it was not his position to make such inquiries and

he had no concerns about the quality of the interpreter. Id. Despite having no

information regarding the interpreter’s ability or qualifications to properly and

adequately translate, Special Agent Jonas testified that, during his interrogation, Mr.

Khan, through the interpreter, told Special Agent Jonas that he knew the three men

named in the Petition and that he was related to each of them. 3-ER-399. Special

4

Agent Jonas further stated that Mr. Khan, through the interpreter, explained to him

how Mr. Khan had approached Ms. Soriano to help the three men petition USCIS

through RES. 3-ER-399–400. Special Agent Jonas also stated that Mr. Khan, through

the interpreter, told him that Ms. Soriano needed the men to pay a fee for petitioning

USCIS. Id. Special Agent Jonas’ testimony about Mr. Khan’s translated statements

was used at trial to connect Mr. Khan to Ms. Soriano and the alleged conspiracy. Id .

Any objective person would expect that the translations of Mr. Khan’s statements

would be used against Mr. Khan at trial, and therefore, they constituted out-of-court,

testimonial statements. See Crawford v. Washington, 541 U.S. at 51 (“An accuser

who makes a formal statement to government officers bears testimony in a sense that

a person who makes a casual remark to an acquaintance does not.”). Despite the

government’s use of these statements to convict Mr. Khan of the alleged conspiracy,

the Government never called the interpreter to testify at trial.

B. Procedural History

On March 28, 2022, the jury found Mr. Khan guilty. Mr. Khan appealed his

conviction to the Ninth Circuit Court of Appeals, arguing, inter alia, that the trial

court violated Mr. Khan’s Sixth Amendment Right to Confrontation by failing to

provide Mr. Khan the opportunity to cross-examine the interpreter who translated

Mr. Khan’s interrogation conducted by Special Agent Jonas.

Mr. Khan’s appeal was heard on June 12, 2024, and on July 23, 2024, the Ninth

Circuit issued a memorandum opinion affirming Mr. Khan’s conviction. (App. A, 6a).

On the issue of Special Agent Jonas’ interpreter, the Ninth Circuit, relying on United

5

States v. Nazemian, 948 F.2d 522 (9th Cir. 1987), held that the admission of Special

Agent Jonas’ testimony regarding the interpreter’s translation of Mr. Khan’s

statements during the interrogation did not violate the Confrontation Clause because

there was sufficient evidence for the trial judge to determine that Agent Jonas’

interpreter acted as a “language conduit” for Mr. Khan. (App. A, 4a). Thus, under

Nazemian, the Government could admit Agent Jonas’ testimony regarding the

interpreter’s translation without providing Mr. Khan with an opportunity to crossexamine the interpreter. Id.

On August 6, 2024, Mr. Khan filed a petition for rehearing en banc, arguing

that the Ninth Circuit erred when it found that the out-of-court statements by Mr.

Khan’s interpreter were properly admitted, even though Mr. Khan was never

provided an opportunity to cross-examine the interpreter. The Ninth Circuit denied

the petition for rehearing on August 29, 2024. (App. B, 7a).

V.

REASONS FOR GRANTING THE PETITION

This case presents a question that is of critical importance to criminal justice,

and whose resolution is essential to ensuring the preservation of defendants’ Sixth

Amendment right to cross-examination, as well as the uniformity of applications of

federal law across circuits. In the opinion under review, the Ninth Circuit has

admitted testimony regarding translations of extrajudicial, testimonial statements in

clear contravention of this Court’s holdings in Crawford v. Washington, Melendez-

Diaz v. Massachusetts, and Bullcoming v. New Mexico, violating the constitutional

rights of Mr. Khan and potentially many future defendants.

6

Moreover, a circuit split is emerging with respect to this issue. In Nazemian,

948 F.2d at 525–26, the Ninth Circuit found that an interpreter’s translation of a

defendant’s statements could be attributed directly to the defendant where the trial

judge determined that the translation bore certain hallmarks of reliability. In United

States v. Charles, 722 F.3d 1319, 1321 (11th Cir. 2013), a case that, like Nazemian,

involved an officer testifying about statements made by a defendant through an

interpreter who never testified, the Eleventh Circuit came to a different conclusion

than the Ninth Circuit. In Charles, the Eleventh Circuit held that under the

framework this Court articulated in Crawford, a defendant has a constitutional right

to confront the interpreter in these circumstances. 722 F.3d at 1323. This Court

should review and correct the Ninth Circuit’s distorted interpretations of this Court’s

holding in Crawford and its progeny that allow the government to avoid the strictures

of the Sixth Amendment by convincing the trial judge, as opposed to the jury, that

the interpreter was a conduit for the defendant.

A. This Court Should Grant Review to Decide Whether United States v.

Nazemian Has Been Overruled by Crawford v. Washington and its

Progeny.

The Ninth Circuit’s Nazemian opinion highlights the need for clarity and

uniformity regarding the application of this Court’s holding in Crawford v.

Washington in the context of allowing the admission of out-of-court, testimonial

statements that have been translated by a third party, without the need for the

Government to produce the interpreter at trial, thus denying a defendant the

opportunity to cross-examine the interpreter. This is a vital question that implicates

7

the constitutional rights of a broad swath of criminal defendants. The Ninth Circuit’s

prevailing standards, as articulated in Nazemian and its progeny, are inconsistent

with this Court’s holdings in Crawford, Melendez-Diaz, and Bullcoming.

1. This Court’s prior holdings make clear that the Confrontation Clause’s

cross-examination requirement is applicable even where the statement at

issue bears hallmarks of reliability.

The Sixth Amendment’s Confrontation Clause 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. The right to cross-examine witnesses is part

and parcel of a defendant’s rights under the Confrontation Clause. Pointer v. Texas,

380 U.S. 400, 403 (1965). This Court has long understood that “the right to confront

and cross-examine adverse witnesses contributes to the establishment of a system of

criminal justice in which the perception as well as the reality of fairness prevails[,]”

and advances such goals by ensuring that “convictions will not be based on the

charges of unseen and unknown—and hence unchallengeable—individuals.” Lee v.

Illinois, 476 U.S. 530, 540 (1986). The contours of this right have been expounded

upon in numerous decisions in this Court, including Crawford, Melendez-Diaz, and

Bullcoming. These decisions all stand for the principle that out-of-court testimonial

statements may only be admitted where the defendant is able to cross-examine the

declarant, even in circumstances in which the out-of-court statement is likely to be

reliable.

In Crawford, this Court held that out-of-court testimonial statements may only

be admitted for use against a defendant where the defendant has the opportunity to

8

cross-examine the declarant. 541 U.S. at 36–37. In reaching this holding, the Court

found that the Framers had not intended “to leave the Sixth Amendment’s

protections to the vagaries of the rules of evidence, much less to amorphous notions

of ‘reliability,’” Id. at 61, and found that “[a]dmitting statements deemed reliable by

a judge is fundamentally at odds with the right of confrontation.” Id. The Court

explicitly rejected the test articulated in Ohio v. Roberts, 448 U.S. 56 (1980), which

allowed a jury to hear evidence based on a judicial finding of reliability. Crawford,

557 U.S. at 65. The Court found that the “unpardonable vice” of this test was “its

demonstrated capacity to admit core testimonial statements that the Confrontation

Clause plainly meant to exclude.” Id. Further, in Crawford, this Court found that the

Confrontation Clause’s guarantee was a procedural guarantee, not a substantive one.

Accordingly, this Court held that the Confrontation Clause commands “not that the

evidence be reliable, but that reliability be assessed in a particular manner: by testing

in the crucible of cross-examination.” Id. at 61 (emphasis added).

This Court’s decisions following Crawford have made clear that the Crawford

holding applies even where the out-of-court statements have strong indicia of

reliability. First, in Melendez-Diaz, the Court applied Crawford to the admission of

drug-testing reports, holding that for such reports to be properly admitted, the

defendant must have had an opportunity to cross-examine the analyst that produced

it. 557 U.S. at 306. There, this Court rejected the government argument that

testimony which was the “result of neutral, scientific testing” was exempt from the

Confrontation Clause’s cross-examination requirement. Melendez-Diaz at 317. In

9

doing so, the Court not only rejected the argument, but found it to be “little more than

an invitation to return to our overruled decision in Roberts.” Id. Further, this Court

rejected the contention that forensic evidence was indisputably neutral and reliable.

Id. The Court noted that a forensic analyst responding to a request from law

enforcement may feel pressure to alter evidence to support the prosecution, and that

while “an honest analyst will not alter his testimony when forced to confront the

defendant, the same cannot be said of the fraudulent analyst.” Id. at 318 (cleaned up).

The Court also observed that cross-examination served the purpose not only of

identifying fraudulent analysts, but also of revealing incompetency, id. at 319, finding

that, “an analyst’s lack of proper training or deficiency in judgment may be disclosed

in cross-examination.” Id. at 320.

Subsequently, in Bullcoming, this Court held that defendants have a right to

cross-examine analysts who conduct a blood-alcohol analysis. 564 U.S. at 662. There,

the government argued that cross examination was not needed because the analyst

“simply transcribed the result generated by the gas chromatograph machine,

presenting no interpretation and exercising no independent judgment.” Id. at 659

(cleaned up). However, the Supreme Court found that the analyst’s actions in

transcribing results, such as the analyst’s finding that no “circumstance or condition

affected the integrity of the sample or the validity of the analysis,” still must be

evaluated in front of a jury through cross-examination. Id. at 660. There, the Court

stressed that, “[t]he text of the Sixth Amendment does not suggest any open-ended

10

exceptions from the confrontation requirement to be developed by the courts.” Id. at

662 (quoting Crawford, 541 U.S., at 54).

2. Ninth Circuit precedent, as articulated in United States v. Nazemian and

its progeny, is inconsistent with this Court’s holdings in Crawford,

Melendez-Diaz, and Bullcoming.

In the instant case, when the trial court admitted Special Agent Jonas’

testimony regarding the interpreter’s out-of-court, testimonial statements, it relied

on the Ninth Circuit precedent set forth United States v. Nazemian, which held that

an interpreter’s translations of a defendant’s statements could themselves be

attributed to the defendant where the trial judge determines that the translations

bore certain hallmarks of reliability. 948 F.2d at 525–26. This precedent is directly

contradicted by this Court’s decisions in Crawford, Melendez-Diaz, and in

Bullcoming.

a. According to Ninth Circuit precedent, testimony regarding an

interpreter’s translations of a defendant’s testimonial statements are

admissible where the judge finds that the interpreter was reliable,

even where the defendant has no opportunity to cross-examine the

interpreter.

This Court’s holdings in Crawford, Bullcoming, and Melendez-Diaz make clear

that, without exception, if the Government uses an out-of-court testimonial statement

as evidence against a defendant, the defendant must have the opportunity to crossexamine the declarant. Here, however, the court below relied on existing Ninth

Circuit precedent to excuse compliance with the Sixth Amendment and to justify the

admission of defendant’s incriminating statements made through an interpreter,

simply based upon the trial judge’s determination that the interpreter served as a

11

mere “conduit” for Mr. Khan. Because the trial court found that the interpreter was

a conduit for Mr. Khan, Special Agent Jonas was allowed to testify about Mr. Khan’s

statements, as heard through the interpreter, without providing any information

about the interpreter’s qualifications and without providing Mr. Khan with an

opportunity to cross-examine the translator. This result is wholly inapposite and

inconsistent with this Court’s holdings in Crawford, Melendez-Diaz, and Bullcoming.

In Nazemian, a pre-Crawford case, the Ninth Circuit held that admitting an

undercover agent’s testimony regarding the defendant’s statements—as translated

by an interpreter—did not violate the Confrontation Clause or create any hearsay

issues, even where the defendant had no opportunity to cross-examine the

interpreter. 948 F.2d at 525, see also United States v. Orm Hieng, 679 F.3d at 1139.

In Nazemian, the Ninth Circuit held that where the interpreter has been found to be

reliable, they may serve as a mere “conduit” for the defendant. Nazemian, 948 F.2d

at 527. Accordingly, the Ninth Circuit found that the interpreter’s translations may

be directly attributed to the defendant. Id. The Ninth Circuit provided a nonexhaustive list of factors, which could be used by a judge to determine the reliability

of the translation at issue, including who provided the interpreter, whether there was

any motive for the interpreter to mislead or distort the defendant, the interpreter’s

qualifications and skill, and whether any actions taken after the conversation at issue

were consistent with the translation provided. Nazemian, 948 F.2d at 527, see also

Orm Hieng, 679 F.3d at 1139. Based on these factors, the Nazemian court found that

because the interpreter had translated statements over the course of a prolonged

12

period and multiple meetings, because there was no motive to mistranslate, and

because the defendant engaged in subsequent actions that were consistent with the

proffered translation, the statements were likely reliable and accordingly presented

no Confrontation Clause or hearsay problems. Nazemian, 948 F.2d at 528.

In 2012, after Crawford, Melendez-Diaz, and Bullcoming were decided, the

Ninth Circuit revisited the Nazemian holding in United States v. Orm Hieng, 679

F.3d 1131 (9th Cir. 2012). In Orm Hieng, a Drug Enforcement Agency (“DEA”)

testified that he interviewed the defendant using a Cambodian interpreter who

interpreted the DEA’s questions from English to Cambodian, and then translated

Hieng’s responses from Cambodian back into English. Orm Hieng, 679 F.3d at 1136.

The Government did not call the Cambodian interpreter to testify at trial. Id. at 1137.

The DEA agent’s trial testimony regarding the interpreter’s translations from that

interview undercut Hieng’s primary defense and Hieng was ultimately convicted. Id.

Hieng appealed his conviction asserting that the district court’s error in allowing the

DEA to testify about the statements made by the interpreter at trial violated Hieng’s

Sixth Amendment right to confrontation. Id. at 1135, 1138-39. As part of his Sixth

Amendment argument, Hieng asserted that Nazemian had been overruled by

Crawford and its progeny. Id. at 1309. Reviewing under the plain error standard, id.

at 1139, the Ninth Circuit rejected this argument, finding that it was bound to the

Nazemian precedent unless a Ninth Circuit en banc court or this Court undercut that

precedent in such a manner that the cases were “clearly irreconcilable.” Orm Hieng,

679 F.3d at 1139 (quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)). The

13

Orm Hieng court found that this Court’s decisions in Crawford, Melendez-Diaz, and

Bullcoming did not directly address the question of whether the Sixth Amendment

requires the court to attribute an interpreter’s translation to the interpreter himself,

and accordingly, found that those cases were not in direct conflict with the Ninth

Circuit’s Nazemian holding. Id. at 1140. Therefore, the Orm Hieng court upheld

Nazemian. Id.

b. The vitality of Nazemian has been challenged in the Ninth Circuit

and elsewhere, and a circuit split is emerging with respect to the

questions at issue.

Although the Ninth Circuit has upheld Nazemian as the prevailing law, the

Orm Hieng panel’s finding that Nazemian was not “clearly irreconcilable” was far

from absolute. In Orm Hieng and other cases, the Ninth Circuit has recognized that

although this Court has not directly ruled on whether a translated statement may be

attributed to the original speaker, the Court’s holdings in Crawford and its progeny

throw the vitality of the Nazemian precedent into doubt. Id. at 1145 (Berzon, J.,

concurring); United States v. Romo-Chavez, 681 F.3d 955, 964 (9th Cir. 2012). While

the Orm Hieng court upheld Nazemian, the panel nonetheless noted “that there is ...

tension between the Nazemian analysis and the Supreme Court’s recent approach to

the Confrontation Clause.” Orm Hieng, 679 F.3d at 1140. Further, in a concurring

opinion in Orm Hieng, Judge Berzon stated that in light of this Court’s holdings in

Crawford, Melendez-Diaz, and Bullcoming, the Ninth Circuit should reconsider the

vitality of its Confrontation Clause precedent, en banc. Id. at 1145 (Berzon, J.,

concurring). Judge Berzon continued, stating that Nazemian’s holding “seems in

14

great tension with the holdings of Melendez–Diaz and Bullcoming.” Id. at 1149

(citations omitted). In United States v. Romo-Chavez, Judge Berzon reiterated her

concerns about the continued vitality of Nazemian under Crawford and its progeny,

explaining that the Nazemian standard requires a “high degree of reliability” and

“[w]here the interpreter’s background and tested proficiency does not confirm the

capacity for such accuracy, the entire premise on which Nazemian stands—shaky

though it may be with regard to the Confrontation Clause after Crawford—collapses.”

681 F.3d at 964 (Berzon, J. concurring) (internal citations omitted).

Moreover, a circuit split is emerging with respect to the Confrontation Clause

questions at issue in Nazemian and in the instant case. The Eleventh Circuit’s ruling

in United States v. Charles, also implicates the viability of the language

conduit/agency theory upon which Nazemian is based. 722 F.3d 1319, 1323 (11th Cir.

2013). In Charles, a Customs and Border Patrol officer at Miami International

Airport suspected the defendant of a possible immigration crime. Id. at 1320–21. The

defendant only spoke Creole. Id. at 1320. Because none of the CBP officers spoke

Creole, the interrogating officer called an interpreter service. Id. at 1321. The

interrogating officer then asked questions in English; the interpreter would translate

the English-language questions to the defendant in Creole and then relay the

translated Creole responses in English back to the interrogating officer. Id. At trial,

the government did not call the interpreter to testify, instead relying on the

interrogating officer to tell the jury what the interpreter had told him over the phone.

Id. On appeal, the Eleventh Circuit found the officer’s testimony violated the

15

Confrontation Clause because the interpreter made an out-of-court testimonial

statement when she translated what the defendant said, and because the defendant

did not get an opportunity to cross-examine the interpreter. Id. at 1323, 1331. In

finding the Sixth Amendment violation, the Charles court also rejected the

government’s theory, under previous Eleventh Circuit law, United States v. Alvarez,

755 F.2d 830, 860 (11th Cir. 1985), that the court “should treat interpreter’s out-ofcourt statements as if they are the defendant’s own and thus, consider Charles to be

the declarant of those statements for purposes of the Confrontation Clause analysis.”

Charles, 722 F.3d at 1325.

c. The Ninth Circuit’s holdings in Nazemian and its progeny,

contravene this Court’s holdings in Crawford and its progeny and

must be corrected in order to preserve defendants’ Sixth Amendment

rights.

The Nazemian “conduit” test is nearly identical to the reliability tests that

were overturned in Crawford, which required the judge to consider several factors to

determine whether out-of-court statements were reliable. There, this Court warned

that such tests were “amorphous” and ultimately unconstitutionally placed the judge

in the jury’s position to make factual findings. Crawford, 541 U.S. at 63–66. In

Nazemian, similar to Crawford, the proffered “conduit” test merely articulates a nonexhaustive list of factors that a judge may consider when determining the reliability

of an interpreter’s translation. In fact, Nazemian is arguably more amorphous than

the Roberts test that this Court overturned in Crawford. Nazemian fails to enumerate

a firm set of factors for a judge to consider before finding that an interpreter acted as

a “conduit” for a declarant, but rather lists four nonexclusive factors without

16

explaining which factors carry more weight. Nazemian, 948 F.2d at 527. As a result,

the Nazemian holding creates the same type of opportunity for the judge to reach

subjective conclusions on reliability with few procedural safeguards that this Court

firmly and repeatedly rejected in Crawford and its progeny.

Even under ideal circumstances, interpreter’s translations are not precise

enough to merit special treatment, and they are at least as—if not more—impervious

to distortion and manipulation as were the tests discussed in Melendez-Diaz and in

Bullcoming. In those cases, this Court highlighted the inadequacies of even fairly

strict reliability tests. In Melendez-Diaz, this Court found that even supposedly

“neutral scientific testing” is not immune from manipulation or human error, due to

pressure from law enforcement, lack of proper training, or other causes. 557 U.S. at

318–320. There, this Court found that confrontation was a necessary means of

assuring accurate forensic analysis and of deterring fraudulent analysis in the first

instance. Id. at 318–19. Further, the Court found that confrontation is a tool to

identify incompetent analysts, and that “[s]erious deficiencies have been found in the

forensic evidence used in criminal trials.” Id. at 319. Finally, the Court rejected the

Government’s argument that analysts’ affidavits regarding their forensic analyses

were akin to business records, finding both that the affidavits did not qualify as such,

and that “even if they did, their authors would be subject to confrontation

nonetheless.” Id. at 321.

Similarly, in Bullcoming, where the Government had argued that crossexamination was not needed because the alcohol-blood analyst had not exercised

17

independent judgment and merely transcribed results generated by a machine, the

Court nonetheless found that cross-examination was still required because the

defendant should have been afforded the opportunity to ask questions designed to

reveal incompetence, evasiveness, or dishonesty on the part of the analyst, as well as

regarding the particular test and testing process that was employed. 564 U.S. at 660–

661. On this point, the Court firmly held that its “precedent cannot sensibly be read

any other way.” Id. at 663.

Again, even under perfect circumstances, an interpreter’s account of a

defendant’s words would be subject to the same, and arguably greater, concerns

regarding manipulation, human error, and deficiencies in skill and judgment as this

Court had identified in Melendez-Diaz. The Ninth Circuit found as much in its

decision in Orm Hieng, in which Judge Berzon’s concurrence recognized that,

translation “is much less of a science than conducting laboratory tests, and so much

more subject to error and dispute.” 679 F.3d at 1149 (Berzon, J., concurring)

(emphasis original). But in the instant case, the Ninth Circuit has applied the

Nazemian reliability factors and found an interpreter to be reliable under extremely

questionable circumstances, where the interpreter could not be identified by name,

where the court lacked any information regarding the interpreter’s background, the

interpreter’s proficiency in the Bengali language, or any other information needed to

assess the skill, reliability and accuracy of an interpreter’s work and where there was

no recording or written statement made of the interrogation. That the Ninth Circuit

found the unnamed interpreter in the instant case to be sufficiently reliable to act as

18

a “conduit” for Mr. Khan in court, with no opportunity for cross-examination, puts

into sharp relief the “amorphous” and “entirely subjective” nature of the reliability

factors articulated in Nazemian and exemplifies the inherent inadequacies of judgemade reliability tests as an alternative to cross-examination.

More importantly, even if an interpreter could perfectly translate a defendant’s

statement word-for-word, or even if Nazemian contained a more precise test,

Crawford and its progeny make it clear that under the Sixth Amendment, the

interpreter should still be subject to confrontation. In Crawford, this Court firmly

held that “[d]ispensing with confrontation because testimony is obviously reliable is

akin to dispensing with jury trial because a defendant is obviously guilty. This is not

what the Sixth Amendment prescribes.” 541 U.S. at 62. The Court further found that

the Confrontation Clause does not merely reflect a judgment about “the desirability

of reliable evidence ..., but about how reliability can best be determined.” Id. at 61

(emphasis added). The “conduit” test put forth in Nazemian circumvents this process

and empowers the trial judge to make determinations about an interpreter’s

competency and reliability with no opportunity for the defendant to interrogate them,

or for the jury to reach an informed decision on the question independently.

In light of the clear contradiction between the Ninth Circuit’s holding in

Nazemian and this Court’s holdings in Crawford and the cases that have followed it,

this Court should grant review to clarify the scope of its holding in Crawford and to,

once again, emphasize that, Crawford and its progeny require an opportunity to crossexamine a declarant who provides testimonial evidence against a defendant, so as to

19