Opposition Brief — Pablo Gutierrez, Petitioner v. Florida

Supreme Court briefApr 21, 2025

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No. 24-6300

In The

Supreme Court of the United States

PABLO GUTIERREZ,

Petitioner,

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

JAMES UTHMEIER

ATTORNEY GENERAL OF FLORIDA

CELIA TERENZIO

Chief Assistant Attorney General

Bureau Chief

Counsel of Record

DEBORAH KOENIG

Senior Assistant Attorney General

Office of the Attorney General

1515 North Flagler Dr., Suite 900

West Palm Beach, Florida 33401

Celia.Terenzio@myfloridalegal.com

Deborah.Koenig@myfloridalegal.com

crimappwpb@myfloridalegal.com

(561) 837-5016

COUNSEL FOR RESPONDENT

QUESTION PRESENTED

Whether Petitioner was deprived of his rights to due process and confrontation

under the Sixth and Fourteenth Amendments, where the interpreter did not interpret

audio and video recordings played to the jury as part of the case against him.

TABLE OF CONTENTS

PAGE(S)

TABLE OF AUTHORITIES ........................................................................................ iv

OPINION BELOW........................................................................................................ 1

STATEMENT OF JURISDICTION ............................................................................. 1

STATEMENT OF THE CASE AND FACTS ............................................................... 1

REASONS FOR DENYING THE PETITION ............................................................. 5

CERTIORARI SHOULD BE DENIED AS GUTIERREZ FAILED TO

ALERT THE STATE COURT TO THE FEDERAL NATURE OF HIS

CLAIMS AND PRESENTED THE ISSUE ENTIRELY ON STATE LAW

GROUNDS ............................................................................................... 5

II.

CERTIORARI SHOULD BE DENIED AS THE UNITED STATES

CONSTITUTION

DOES

NOT

REQUIRE

COMPLETE

SIMULTANEOUS INTERPRETATION OF A DEFENDANT’S TRIAL

PROCEEDINGS, NOR IS THERE CONFLICT AMONG THE LOWER

COURTS ON THIS POINT .................................................................... 6

III.

CERTIORARI SHOULD BE DENIED AS FEDERAL LAW DOES NOT

REQUIRE COMPLETE SIMULTANEOUS INTERPRETATION OF A

DEFENDANT’S TRIAL PROCEEDINGS ............................................ 10

IV.

EVEN IF A DEFENDANT IS GENERALLY ENTITLED TO A

SIMULTANEOUS INTERPRETATION OF THE AUDIO AND VIDEO

RECORDINGS, THE PETITION FOR CERTIORARI SHOULD BE

DENIED BECAUSE THE DENIAL OF THAT RIGHT IN THIS CASE

DID NOT RENDER THE PROCEEDINGS FUNDAMENTALLY

UNFAIR ................................................................................................. 12

CONCLUSION............................................................................................................ 13

iii

TABLE OF AUTHORITIES

Cases

Adams v. Robertson, 520 U.S. 83 (1997) ....................................................................... 6

Gonzales v. Zurbrick, 45 F.2d 934 (6th Cir. 1930)........................................................ 7

Gutierrez v. State, 394 So. 3d 1131 (Fla. 4th DCA 2024) ............................................ 1

Mendoza v. United States, 755 F.3d 821 (7th Cir. 2014) .............................................. 7

Perez-Lastor v. INS., 208 F.3d 773 (9th Cir. 2000) ...................................................... 8

Petrovich v. United States, 205 U.S. 86 (1907) ............................................................. 6

Rockford Life Ins. Co. v. Illinois Dep’t of Revenue, 482 U.S. 182 (1987)...................... 5

Tapia-Corona v. United States, 369 F.2d 366 (9th Cir. 1966) ..................................... 7

United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970) ...................... 9

United States v. Desist, 384 F.2d (2d Cir. 1967) ........................................................... 6

United States v. Johnson, 248 F.3d 655 (7th Cir. 2001)............................................... 6

United States v. Joshi, 896 F.2d 1303 (11th Cir. 1990)........................................ 10, 12

United States v. Mayans, 17 F.3d 1174 (9th Cir. 1994) ............................................... 6

Valladares v. United States, 871 F. 2d 1564 (11th Cir. 1989) ............................... 7, 12

Constitutional Provisions

Fla. Const. Art. I ............................................................................................................ 2

U.S. Const. amend V .................................................................................................. 2, 6

U.S. Const. amend VI ................................................................................................ 2, 6

U.S. Const. amend XIV .............................................................................................. 2, 6

Statutes

28 U.S.C. § 1257(a) ........................................................................................................ 1

28 U.S.C. § 1827 ..................................................................................................... 10, 11

Rules

S. Ct. R. 10 ..................................................................................................................... 5

S. Ct. R. 14(1)(g)(i) ......................................................................................................... 1

Other Authorities

Administrative Order 2.506-114, subsection 11, 15th Judicial Circuit of Florida ...... 3

Federal Court Interpreter Orientation Manual and Glossary, Administrative Office

of the United States Courts, Court Services Office (Revised December 2024),

https://www.uscourts.gov/sites/default/files/2024-12/2024-federal-courtinterpreter-orientation-manual_0.pdf ..................................................................... 11

OPINION BELOW

The opinion below from Florida’s Fourth District Court of Appeal is reported

as Gutierrez v. State, 394 So. 3d 1131 (Fla. 4th DCA 2024).

STATEMENT OF JURISDICTION

Petitioner, Pablo Gutierrez (“Gutierrez”) is seeking jurisdiction pursuant to 28

U.S.C. § 1257(a). Assuming he has properly presented this Court with a federal

constitutional issue, a point the State does not concede, this Court would have

jurisdiction under 28 U.S.C. § 1257(a).

STATEMENT OF THE CASE AND FACTS

Gutierrez was tried and convicted of three counts of sexual battery on a person

less than twelve years of age and two counts of lewd and lascivious molestation. He

was sentenced to life in prison on each count. He now petitions this Court to address

the question of whether the Florida trial court denied him his constitutional rights to

due process and confrontation of witnesses against him when it did not allow a courtappointed interpreter to translate audio and video recordings of a child witness that

were played to the jury at his trial.

Supreme Court Rule 14(1)(g)(i) requires that, in a petition for certiorari review

of a state-court judgment, the parties indicate “the stage in the proceedings, both in

the court of first instance and in the appellate courts, when the federal questions

sought to be reviewed were raised,” as well as “the method or manner of raising them

and the way in which they were passed on by those courts.” At trial, the State

presented recorded audio and video of the child victims explaining that Gutierrez was

also known as “Don Pablo” and that the man named “Don Pablo” had perpetrated the

sex offenses against them. Even though the State had provided these recordings to

the defense four years earlier, Gutierrez’s counsel objected when these recordings

were not translated into Spanish by the court-appointed interpreter. Counsel told the

court that this was a “constitutional issue” but did not elaborate or specify which

constitutional provisions were at issue or whether they were state or federal. It was

not until Gutierrez’s initial brief on appeal to Florida’s Fourth District Court of

Appeal that he claimed the failure to interpret the statements deprived him of his

rights under the Fifth, Sixth and Fourteenth Amendments to the United States

Constitution and Article I, Sections 2, 7, 9, 16 and 22 of the Florida Constitution.”

(A474) No other mention of a federal question was raised in state court and no explicit

ruling on any federal question was made by the state courts. Gutierrez fails to

indicate when the federal question now under review was raised, how it was raised,

or the way in which it was passed on by the state courts.

Gutierrez was charged with three counts of sexual battery on a person less

than twelve years of age and two counts of lewd and lascivious molestation. In

October of 2018, the State interviewed the child victims of Gutierrez and recorded

their testimony identifying Gutierrez as “Don Pablo” and identifying “Don Pablo” as

the man who had molested them. In February of 2019, the State provided those

recordings to the defense to allow them time to have them translated. Approximately

two and a half years later, in November of 2021, a pretrial hearing was held on the

admissibility of the recorded interviews of the child victims. (A7-A179) While the

recordings were not played during this hearing, an analysis of the contents of those

recordings occurred during direct and cross-examination of the witnesses and they

were discussed during argument.

The case later proceeded to trial. During the trial, the State published the

recordings of the child interviews. (A340) During the recording, the defense asked to

approach sidebar. (A363) Defense counsel told the trial court the interpreter was not

interpreting the videos. (A363) The State explained the interpreter did not interpret

the physical exhibits. (A364) Defense counsel stated Appellant needed to be able to

hear the recordings. (A364)

The jury was excused, and the trial court asked the interpreter if they were

interpreting the recordings. (A364-65) The interpreter explained they did not

interpret audio or video. (A365) The trial court took a recess to pull up the

administrative order that addressed interpreters. (A365)

Upon return, the court noted that Administrative Order number 2.506-114,

subsection 11 stated “staff interpreters shall not translate audio or video recordings

during court proceedings.” (A366) That order was signed in 2014. (A366)

Defense counsel indicated she had seen the order but wanted to make a record

that without the interpretation, Appellant was essentially absent from the

proceedings. (A366) She stated she had never seen that before, the corrected herself

to say that she did not recall if she had ever had a client who had no knowledge of

English. (A366)

The trial court noted that the evidence should have been provided to the

defense much earlier in the process, so it was unclear why Gutierrez would not be

familiar with the CPT video that was conducted five years prior. (A366-67) The court

pointed out that it had had “multiple defendants who are Spanish speaking with an

interpreter in a sex battery case where a CPT video has been played, multiple CPT

videos,” and this was the first time anyone had objected to the interpreter procedure.

(A368) The court also pointed out defense counsel had previously represented some

of those defendants. (A368) The court noted the defense objection. (A368)

Gutierrez was later questioned about his right to testify, and he stated he did

not want to testify because he “heard [the victims’] testimony yesterday and [he]

didn’t understand that because it was in English and there was no interpreter.”

(A472-A473) The trial court told Gutierrez that was something for the appellate court

to address. (A473)

A jury found Gutierrez guilty on all counts.

Gutierrez then filed an appeal in Florida’s Fourth District Court of Appeal. In

his first issue on appeal, he argued his rights were violated by the lack of

interpretation of the video interviews. Other than the passing reference to the Fifth,

Sixth and Fourteenth Amendments to the United States Constitution mentioned

earlier, Gutierrez’s entire argument was based on Florida state law. The Fourth

District Court of Appeal affirmed the conviction and sentence without a written

opinion. The District Court also denied the motion for rehearing and for certification

to the Supreme Court of Florida.

REASONS FOR DENYING THE PETITION

“Review on a writ of certiorari is not a matter of right, but of judicial discretion.

A petition for a writ of certiorari will be granted only for compelling reasons.” S. Ct.

R. 10. Cases which have not developed conflicts between federal or state courts or

presented important, unsettled questions of federal law usually do not deserve

certiorari review. S. Ct. R. 10; Rockford Life Ins. Co. v. Illinois Dep’t of Revenue, 482

U.S. 182, 184, n.3 (1987). Furthermore, “erroneous factual findings or the

misapplication of a properly stated rule of law” rarely warrants certiorari review. S.

Ct. R. 10. Under these standards, Gutierrez has not identified a basis for this Court

to grant his petition for certiorari.

The Constitution of the United States does not contain an express right to an

interpreter in criminal cases, nor has this Court found the Constitution guarantees

an absolute right to an interpreter for a defendant who does not speak or understand

English. Gutierrez claims this Court should find his constitutional rights were

violated because the trial court of the Fifteenth Judicial Circuit of Florida elected to

follow an administrative order prohibiting court interpreters from interpreting audio

or video recordings played during court proceedings. He has failed, however, to point

to any federal law that provides the trial court’s actions violated his constitutional

rights. The petition should be denied.

CERTIORARI SHOULD BE DENIED AS GUTIERREZ FAILED TO

ALERT THE STATE COURT TO THE FEDERAL NATURE OF HIS

CLAIMS AND PRESENTED THE ISSUE ENTIRELY ON STATE LAW

GROUNDS.

Gutierrez did not sufficiently alert the state courts to the federal nature of his

claim. In the trial court, defense counsel merely mentioned this was a “constitutional

issue,” and on appeal, Gutierrez only noted a violation of the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution in the concluding

paragraph of the pertinent portion of his brief. In both his initial and reply briefs,

Gutierrez relied entirely on state law to present his argument, and he did not cite to

any federal cases to alert the District Court to the federal nature of his claim. This is

not sufficient to allow review by this Court. Adams v. Robertson, 520 U.S. 83 (1997).

“With ‘very rare exceptions,’ we have adhered to the rule in reviewing state court

judgments under 28 U.S.C. § 1257 that we will not consider a petitioner’s federal

claim unless it was either address by, or properly presented to, the state court that

rendered the decision we have been asked to review.” Id. at 86 (internal citations

omitted). As such, this Court should deny certiorari.

II.

CERTIORARI SHOULD BE DENIED AS THE UNITED STATES

CONSTITUTION

DOES

NOT

REQUIRE

COMPLETE

SIMULTANEOUS INTERPRETATION OF A DEFENDANT’S TRIAL

PROCEEDINGS, NOR IS THERE CONFLICT AMONG THE LOWER

COURTS ON THIS POINT.

This Court has never recognized an absolute right to an interpreter for

individuals who do not speak or understand English. United States v. Johnson, 248

F.3d 655, 663 (7th Cir. 2001); United States v. Desist, 384 F.2d 889, 901 (2d Cir. 1967).

The most it has done is hold that the right to an interpreter is within the discretion

of the court. Petrovich v. United States, 205 U.S. 86 (1907). While other federal courts

have found the right to an interpreter exists via the Due Process Clause, see e.g.

United States v. Mayans, 17 F.3d 1174 (9th Cir. 1994), those courts have differed on

the degree of interpretation they are willing to say is required to protect a defendant’s

rights. Even in cases that have found a defendant’s rights were violated by lack of an

interpreter the courts have not held that full simultaneous interpretation of live

testimony, let alone interpretation of a recording, is required. See Valladares v.

United States, 871 F. 2d 1564, 1565-66 (11th Cir. 1989).

For example, in Mendoza v. United States, 755 F.3d 821 (7th Cir. 2014), the

court noted that due process requires a defendant to be able to understand the

proceedings and communicate with counsel. Id. at 827-28. However, the court then

went on to hold that “a defendant does not have a due process right to have an

interpreter continuously seated at the defense table.” Id. at 828. The Ninth Circuit,

in Tapia-Corona v. United States, 369 F.2d 366 (9th Cir. 1966), held that the

defendant’s rights were not violated when not all of the English testimony was

simultaneously interpreted for him. The court found it was sufficient that the

interpreter was sitting at the defense table and was available for “immediate

consultation.” Id.

In Gonzales v. Zurbrick, 45 F.2d 934, 937 (6th Cir. 1930), the court held the

statement of the witness at the preliminary hearing “should have been fully explained

to the alien in her own language and she should have been afforded the opportunity

to cross-examine.” But the court did not require simultaneous interpretation of the

live testimony of the witness and instead determined a summary of that testimony

would have sufficed. Id.; see also Valladares, 871 F. 2d at 1565-66 (affirming where

summaries of testimony were provided instead of word for word interpretation). If

simultaneous interpretation of live testimony is not required, it therefore follows that

simultaneous interpretation of audio recordings is not required to satisfy

constitutional muster either.

Gutierrez claims a partial interpretation does not satisfy due process. This

claim relies on Perez-Lastor v. INS., 208 F.3d 773 (9th Cir. 2000), which is

distinguishable from the case at bar. In Perez-Lastor, the interpreter did not speak

the same dialect as the alien, who did not fully understand the interpretation. Id. at

776. The interpretation at issue was testimony and questioning of the alien himself,

as well as a declaration of the defendant that had been written in English. Id. The

Ninth Circuit found the incomplete and incorrect interpretation prejudiced the alien

as he was unable to understand what was being asked of him and was unable to

communicate his answers. Id. This inability to communicate directly with the judge

prevented the alien from presenting evidence relevant to his case. Id. at 780.

This is in no way similar to Gutierrez’s case, in which he was able to

communicate with all parties at all times during the proceedings. He was able to

understand and answer all questions posed to him. He would have been able to

effectively convey his own testimony to the jury had he chosen to do so. Further, the

fact that a summary of testimony has been held to protect a defendant’s constitutional

rights directly contravenes the idea that any partial interpretation violates a

defendant’s constitutional rights. The interpretation done in Gutierrez’s case is not a

partial interpretation that would violate due process.

Gutierrez also had access to the recordings years before trial. The recordings

were provided in discovery more than four years before the trial took place and the

hearing to determine the admissibility of the recordings was held a year and a half

before trial. Gutierrez and his counsel had ample opportunity to ensure he was

familiar with the contents of the recordings. See infra 12-13.

It is clear from the record that contrary to Appellant’s contentions, this was

not a case where Gutierrez sat “in total incomprehension as the trial proceeded,” as

was the case in United States ex rel. Negron v. New York, 434 F.2d 386, 390 (2d Cir.

1970). In Negron, none of the English testimony was simultaneously interpreted for

the defendant as the interpreter was not continuously in the courtroom and, when

she was, she “never translated English testimony for Negron while the trial was in

progress.” Id. at 388. Negron was unable to understand twelve of the fourteen

witnesses who testified against him. Id. The communication between Negron and the

other parties involved in the case was described as “spasmodic and irregular.” Id.

Negron only spoke with his attorney with the aid of an interpreter for about twenty

minutes before trial and for ten to twenty minutes “during two brief recesses in the

course of Negron’s four-day trial.” Id.

Conversely, Gutierrez had an interpreter interpret all of the live testimony of

all of the witnesses. The interpreter was available throughout the entire trial to

facilitate communication between Gutierrez and counsel and between Gutierrez and

the court. The interpreter also interpreted everything Gutierrez said during trial and

would have been available to interpret for him had he testified.

Furthermore, Gutierrez’s decision not to testify due to the lack of simultaneous

interpretation of the recordings does not indicate a violation of his rights, either. His

right to confront witnesses against him was satisfied as all of the live testimony was

interpreted and a thorough cross-examination of those witnesses was conducted. And

while Gutierrez had the right to testify on his own behalf, he knowingly and

voluntarily waived that right. As discussed in depth in section IV, Gutierrez had

ample opportunity to become aware of the substance of the recordings. He knew what

the witnesses said against him during their live testimony. He was able to converse

with counsel throughout the trial. He would have been afforded the services of the

interpreter during his testimony. His decision not to testify was in no way prejudiced

by a violation of his rights due to the lack of interpretation of the recordings. The

level of interpretation provided to Gutierrez protected his constitutional rights.

III.

CERTIORARI SHOULD BE DENIED AS FEDERAL LAW DOES NOT

REQUIRE COMPLETE SIMULTANEOUS INTERPRETATION OF A

DEFENDANT’S TRIAL PROCEEDINGS.

The federal courts do not mandate simultaneous interpretation of audio or

video recordings during presentation at trial. In the federal court system, the Court

Interpreter’s Act, 28 U.S.C. § 1827, sets out the rules governing interpreters. This Act

“does not create new constitutional rights for defendants or expand existing

constitutional safeguards.” United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir.

1990). Under this Act, if a “presiding judicial officer” determines that a defendant in

a judicial proceeding “speaks only or primarily a language other than the English

language,” “so as to inhibit such party’s comprehension of the proceedings or

communication with counsel or the presiding judicial officer or so as to inhibit such

witness’ comprehension of questions and the presentation of such testimony,” a

certified interpreter shall be used. 28 U.S.C. 1827(d)(1). The remainder of the statute

sets forth the requirements for certified interpreters.

The Administrative Office of the United States Courts publishes a Federal

Court Interpreter Orientation Manual and Glossary, which was revised in December

2024. Federal Court Interpreter Orientation Manual and Glossary, Administrative

Office of the United States Courts, Court Services Office (Revised December 2024),

https://www.uscourts.gov/sites/default/files/2024-12/2024-federal-court-interpreterorientation-manual_0.pdf. This manual acknowledges that while interpreters may

“occasionally be requested to simultaneously interpret the contents of an audio file

on the record,” interpreters “should refrain” from providing this type of interpretation

“[w]henever possible.” Id. at 25. This is because ‘”[i]nterpretations of audio recordings

under these circumstances will often not meet appropriate evidentiary standards due

to poor sound quality, lack of preparation and research time, and lack of proper

courtroom technology.” Id. Such interpretation “ ‘will likely fail to meet the high

standards’ of the interpreter’s oath.” Id.

Looking at the issue in light of these instructions, it is clear that there are

important and common-sense reasons why the administrative order was in place and

why such an order is not a violation of a defendant’s constitutional rights.

Interpretation of audio or video recordings involves technical issues not implicated

by interpretation of live testimony. The Fifteenth Judicial Circuit of Florida clearly

sought to avoid those issues. This did not violate Gutierrez’s constitutional rights.

IV.

EVEN IF A DEFENDANT IS GENERALLY ENTITLED TO A

SIMULTANEOUS INTERPRETATION OF THE AUDIO AND VIDEO

RECORDINGS, THE PETITION FOR CERTIORARI SHOULD BE

DENIED BECAUSE THE DENIAL OF THAT RIGHT IN THIS CASE

DID NOT RENDER THE PROCEEDINGS FUNDAMENTALLY

UNFAIR.

Even if this Court believes that audio and video recordings should be subject

to simultaneous interpretation, Gutierrez’s rights were still not violated under the

circumstances. If this Court was to look at this issue as a determination of any

inadequacy in the interpretation, the question would be: Did the lack of

interpretation of the recorded statements make the trial fundamentally unfair? See

Joshi, 896 F. 2d at 1309; Valladares, 871 F.2d at 1565-66. Here, the answer to that

question is no.

When looking at the facts of this case, Gutierrez should have been familiar

with the substance of the recordings to the extent his due process rights were

protected. The interviews on the recordings were conducted five years prior to the

trial. These recordings were provided to the defense in discovery in February of 2019.

(A3-A6) The hearing to determine the admissibility of the child hearsay statements

was held in November of 2021. (A7-A179) The trial was conducted in June of 2023.

Gutierrez and defense counsel had more than four years to discuss the contents of the

recordings, to interpret them, to summarize them, to answer any questions Gutierrez

had about them, and to strategize regarding the defense in relation to them, including

any identification made during those interviews.

There is no allegation that Gutierrez did not understand the proceedings other

than the recordings of the victims’ statements played at trial. Gutierrez had an

opportunity to hear testimony about the recordings at the child hearsay hearing and

defense counsel was able to cross-examine the witnesses, not only about the

circumstances surrounding the interviews, but about the statements from the victims

themselves. The victims were subject to rigorous questioning, including crossexamination by defense counsel, which was interpreted for Gutierrez. The amount of

live testimony from these victims that was subject to interpretation was significant.

Counsel also made no request to recall the witnesses after the statements were

played to conduct additional cross examination, indicating none was necessary. The

mere fact that Gutierrez blamed his decision not to testify on the lack of

interpretation of the recordings is not dispositive. As Gutierrez had ample pretrial

opportunity to hear the statements and review them with counsel, had an opportunity

to determine the substance of the statements at the hearing addressing their

admissibility, and heard the entirety of the victims’ testimony, which was

substantially similar to the recorded statements, including the fact that Gutierrez

was called Don Pablo, there was no fundamental unfairness in Gutierrez’s case.

Further, as the proper standard here is a determination of fundamental fairness,

Gutierrez’s “structural error” argument is inapplicable.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

JAMES UTHMEIER

Attorney General of Florida

Tallahassee, Florida

By:/s/Celia Terenzio_

CELIA TERENZIO*