[00:00:00] Speaker 00: Good morning. [00:00:01] Speaker 00: Good morning, Your Honors. [00:00:02] Speaker 00: Armela Staley and Gomont here on behalf of Mr. Lucas Hernandez, and I'd like to reserve two minutes for rebuttal, Your Honor. [00:00:10] Speaker 00: Because an opposing party's statement is an important carve out of the hearsay rule and presents a unique evidentiary question, there is a foundational test. [00:00:20] Speaker 00: It is non-hearsay that is dependent on the actual words the declarant used, so we have to be sure about what was said before such evidence can be introduced. [00:00:30] Speaker 00: And so when the government attempts to introduce the agent's translated statement as non-hearsay, [00:00:36] Speaker 00: and that agent's language proficiency has been placed at issue, the government must either, one, introduce the agent's actual words and have them translated by a court-certified interpreter, or two, establish and lay a sufficient foundational facts that would allow the trior effect [00:00:54] Speaker 00: to conclude that the statement is indeed the defendant's fault. [00:00:57] Speaker 03: Council, I guess a question that I have when I was reviewing the record. [00:01:01] Speaker 03: Did the government ever admit into evidence the words that Mr. Lucas Hernandez actually said, the actual words that were said? [00:01:10] Speaker 00: The government did not, and that's our problem here, Your Honor, and why we're on appeal. [00:01:15] Speaker 00: Had they had the agent testify in Spanish about what was said in this field, we probably would not be able to raise this issue. [00:01:22] Speaker 00: The agent only testified as to his understanding of what he asked Mr. Lucas in the field, and then his understanding of what Mr. Lucas responded. [00:01:32] Speaker 00: We don't know the actual words. [00:01:34] Speaker 00: And when we turn to examples, which is- Go ahead, Anne. [00:01:40] Speaker 01: Do you agree that you're asking us to expand the holding in Nazemian, which was a true interpreter case? [00:01:50] Speaker 01: You're asking us now to hold that whenever someone converses in Spanish with a defendant, that there has to be a qualified interpreter in court [00:02:09] Speaker 01: translating what the, in this case, border agent said in Spanish to English and what he said, the defendant said in Spanish into English. [00:02:23] Speaker 01: Something that's never been done. [00:02:25] Speaker 00: And to be clear, Your Honor, we are not asking that it be expanded or that it be applied in every case. [00:02:30] Speaker 00: We're only asking that it be applied to situations where the language proficiency has been placed at issue. [00:02:36] Speaker 01: But there was a lengthy [00:02:40] Speaker 01: There was lengthy testimony and cross-examination about his proficiency in asking three questions and his proficiency in understanding the answers in Spanish of yes or no or Mexico. [00:03:03] Speaker 00: The problem, Your Honor, is that the precondition, the threshold inquiry that the magistrate judge needed to make was whether that testimony could be equally attributed as being Mr. Lucas's own statement. [00:03:16] Speaker 00: And so although there was testimony that he answered, that he asked the same questions, if we turn to the case of Ramos, for example, that deportation officer also said, [00:03:24] Speaker 00: She asked similar questions and the same questions, and that they had immigration detainees that were processed at that detention center upwards of 1,500 a day. [00:03:34] Speaker 00: But then when she actually testified in Spanish through a court-certified interpreter about what her question was, that interpreter said it was nonsensical in part. [00:03:44] Speaker 00: She wouldn't even know how to begin to translate that question. [00:03:47] Speaker 00: And so we have to know the actual words to be able to assess the pronunciation. [00:03:53] Speaker 00: how the question was asked. [00:03:54] Speaker 03: So I had thought about this question similar to Judge Bolton had just mentioned. [00:03:59] Speaker 03: We're talking about, you know, Mexico, yes and no. [00:04:03] Speaker 03: But then I was rereading, you know, the rule, specifically federal rule of evidence 801, about the party opponent. [00:04:15] Speaker 03: But we actually have to know the question, the words used for the question. [00:04:20] Speaker 03: So it's not just those three words. [00:04:22] Speaker 03: It's what was it that was spoken to the person who's the listener, and then what was it that they then stated? [00:04:31] Speaker 00: I absolutely agree, Your Honor, and I do also agree that the focus needs to be on the question, almost more so than the answer. [00:04:37] Speaker 00: For example, the agent testified that he asked three questions. [00:04:41] Speaker 00: What country they were from, whether they had any immigration documents that allowed them to be in the US, and whether they had entered the US illegally. [00:04:48] Speaker 00: Let's just take that first question. [00:04:49] Speaker 00: What country are you from? [00:04:51] Speaker 00: Did he ask, are you from Mexico? [00:04:54] Speaker 00: Did you come from Mexico? [00:04:56] Speaker 00: Were you born in Mexico? [00:04:58] Speaker 00: All of those could elicit a different response. [00:05:01] Speaker 00: And all of those questions, depending on the pronunciation and the nuances in [00:05:05] Speaker 00: verb, subject-object agreement, verb-tense disagreement. [00:05:10] Speaker 00: It's important to know what was asked to understand then what Mr. Lucas responded yes or no to. [00:05:17] Speaker 01: Even taking the second question... But during this trial, did you ask? [00:05:22] Speaker 00: So the defense counsel did ask on cross-examination. [00:05:25] Speaker 00: He did get into some of the Spanish language proficiency issues, but again... But did he ask? [00:05:31] Speaker 02: What did you ask? [00:05:32] Speaker 00: So they did not ask for the agent to testify as to the Spanish words. [00:05:38] Speaker 00: But that's skipping, once again, the precondition that on pretrial, it was raised. [00:05:43] Speaker 00: They were put on notice. [00:05:44] Speaker 00: The defense counsel filed pretrial motion saying, we don't know what was actually said. [00:05:50] Speaker 00: No inquiry was taken about [00:05:52] Speaker 00: whether or not that statement can be equivalent, whether the agent's testimony could be equivalent to the statement. [00:05:58] Speaker 00: The Nazanian factors, which although not directly the same circumstances here, they can provide helpful guidances for the judge to figure out, can this statement be equal? [00:06:07] Speaker 00: It's not synonymous. [00:06:09] Speaker 00: The agent's testimony is not synonymous to what Mr. Lucas said, especially when the language proficiency was placed at issue pre-trial. [00:06:16] Speaker 01: But then at trial, the language proficiency was explored extensively on cross-examination about how many, what his training had been, how long he had been a Border Patrol agent, how [00:06:34] Speaker 01: long he'd been asking these three questions, his testimony that he understood that he was trained to ask these three questions. [00:06:45] Speaker 01: It's not an interview at the processing. [00:06:48] Speaker 01: It's three questions to determine whether or not the person is going to be detained. [00:06:55] Speaker 01: This is completely explored, but nobody in cross-examination said, well, testify now in Spanish as to what the question was, or testify in Spanish as to what the answer was. [00:07:12] Speaker 01: Instead, this comes up on appeal. [00:07:15] Speaker 01: There's no request for an interpreter. [00:07:19] Speaker 01: There's no request to do any of that. [00:07:21] Speaker 01: But there's a lot of testimony about his language proficiency with respect to these very limited inquiry. [00:07:32] Speaker 00: And again, your honor, that question was asked, but it was the burden of admissibility is on the government. [00:07:37] Speaker 00: And so again, at the beginning and pretrial when they had the pretrial hearing, there was a ruling and the defense counsel was essentially precluded from probing further. [00:07:47] Speaker 00: about the Nazemian factors because the judge said it's a statement by party opponent and in its responsive brief to defense counsel's pre-trial motion the government said when I call the agent I will lay the proper foundation. [00:07:59] Speaker 00: The government did not do that and the magistrate judge did not ask him to do that. [00:08:04] Speaker 03: They did get in. [00:08:07] Speaker 03: One point that even if we were to buy this argument, doesn't the government have another way out here that there's no reason for or no ability for this individual to even stay in the United States? [00:08:17] Speaker 03: There's no legal basis for them to do that. [00:08:20] Speaker 00: We don't know what the central element, one of the central elements was alienage. [00:08:24] Speaker 00: And that's where the Spanish language proficiency comes into place because alienage was so important. [00:08:29] Speaker 00: And even during the prosecutor's closing, the judge interrupted him and said, OK, I understand that you think the statement corroborated with other evidence is enough to establish alienage. [00:08:40] Speaker 00: The prosecutor never argued that without Mr. Lucas's statement that there would be enough corroborating evidence for alienage. [00:08:45] Speaker 00: In fact, that would be improper. [00:08:47] Speaker 00: because that corroborating evidence primarily went to his mode of entry, computer database search, things that were brought up in immigration proceedings, which have a lesser burden, clear and convincing evidence rather than reasonable doubt. [00:09:02] Speaker 00: And so they wouldn't have had enough without Mr. Lucas's statement. [00:09:05] Speaker 01: I think it's the government arguing differently, though. [00:09:09] Speaker 01: Well, we'll ask the government when they testify, that even without his three answers, there was a lot of other evidence in the record, including his immigration record, but the circumstances under which he was found, where he was found, that would have been enough. [00:09:30] Speaker 00: The government is arguing that. [00:09:32] Speaker 00: And we would, again, that standard, the different burdens that the government has in an immigration proceeding versus a criminal proceeding, we would say differs. [00:09:40] Speaker 00: And so there wouldn't be enough. [00:09:41] Speaker 00: But the other issue is that this involves an admission. [00:09:44] Speaker 00: This involves a confession. [00:09:45] Speaker 00: And so that is weighted more heavily. [00:09:49] Speaker 00: For confessions, when there's an admission of confessions, it's hardly ever or seldom considered to be harmless. [00:09:54] Speaker 03: I know you wanted to save some time. [00:09:55] Speaker 03: Do you want me to give you a couple of minutes at the end? [00:10:00] Speaker 00: I was just going a little bit more into the harmlessness, Your Honor. [00:10:02] Speaker 00: And again, because this was a- Well, why don't I do this? [00:10:04] Speaker 03: Let me save a couple of minutes for you, and then you can have that time afterwards. [00:10:07] Speaker 03: Thank you, Your Honor. [00:10:08] Speaker 03: Thank you. [00:10:15] Speaker 03: Good morning. [00:10:16] Speaker 04: Good morning, Your Honors, and may it please the Court, Parker Gardner Erickson on behalf of the United States. [00:10:21] Speaker 04: This Court should affirm the admission of Mr. Lucas Hernandez's field admissions into evidence because they were properly admitted as opponent party statements under Federal Rule of Evidence 801D2A. [00:10:31] Speaker 04: Mr. Lucas Hernandez was approached by Agent Mueller at the bottom of a 20-foot sand ditch where he was asked the question, what country are you from? [00:10:38] Speaker 04: Mr. Lucas Hernandez? [00:10:39] Speaker 02: Well, the problem is we don't know. [00:10:42] Speaker 02: We know that the agent says that that is his understanding of what he asked him in Spanish. [00:10:50] Speaker 02: But we don't know what words were said to him. [00:10:55] Speaker 04: The agent did testify that that is the question that he asked him, and there was no process. [00:10:59] Speaker 02: Well, that's my understanding of the Spanish words I said to him in English. [00:11:06] Speaker 02: I'm telling you in English my understanding of the Spanish words I said to him. [00:11:11] Speaker 02: That's all they could have said, right? [00:11:12] Speaker 04: That's the testimony, Your Honor, yes. [00:11:14] Speaker 04: The agent Mueller, over approximately a dozen years on the job, had asked these same three questions. [00:11:19] Speaker 02: And he also says he can't carry on a conversation in Spanish. [00:11:22] Speaker 04: Yes, Your Honor, but he was trained for two months at the Border Patrol Academy to speak Spanish, and he did ask these... Well, he was trained for two months at the Academy, in course of which they did some Spanish, but yes. [00:11:32] Speaker 02: Right, Your Honor. [00:11:34] Speaker 02: Presumably. [00:11:35] Speaker 03: Well, I do come back. [00:11:37] Speaker 03: I'm glad you cite the rule, because I do come back to the rule. [00:11:41] Speaker 03: And the rule states that the party opponent exceptions they hearsay provides that when the statement made by the party, that's the whole problem, isn't it? [00:11:51] Speaker 03: Made by the party. [00:11:53] Speaker 03: What were the words that were made by the party when we don't know what is being asked? [00:11:59] Speaker 03: We know that the agent said what his interpretation was, but we don't know what the question was because those words were never part of the record that were evaluated. [00:12:15] Speaker 04: I would say that the agent testified to what he told. [00:12:20] Speaker 03: What he understood. [00:12:22] Speaker 03: Correct, Your Honor. [00:12:22] Speaker 03: So what he understood, what he translated, his understanding of the question and then his understanding of the answers. [00:12:30] Speaker 04: Yes, Your Honor. [00:12:30] Speaker 04: I think that's just the way that language works, is we understand words that are said to us. [00:12:35] Speaker 04: So his understanding of what he told Mr. Lucas Hernandez is what country you're from. [00:12:40] Speaker 04: He replied Mexico. [00:12:42] Speaker 02: But the words were never stated in court. [00:12:46] Speaker 02: The actual words, right? [00:12:48] Speaker 02: So what he was testifying to was not the words that he spoke or the words that Mr. — that the — Lucas or not? [00:12:58] Speaker 02: — the defendant spoke, but instead the — his understanding or his translation of what he said and what the defendant said. [00:13:14] Speaker 02: Yes, Your Honor, but I think— So the question is, how is this different from Nazimian? [00:13:21] Speaker 02: Well— I mean, it's different from Nazimian, but how is it different in a relevant way from Nazimian? [00:13:25] Speaker 04: Well, I think the biggest issue here, Your Honor, is the fact that Mr. Lucas Hernandez did not indicate when he was being questioned by Agent Mueller whether or not he had misunderstood him. [00:13:36] Speaker 04: So if Agent Mueller had asked what country you're from, and he said, Mr. Lucas Hernandez, respond, I don't have change on me, then there would be an issue of language here. [00:13:43] Speaker 04: But every answer. [00:13:44] Speaker 02: But that's an application, Nizemian. [00:13:46] Speaker 02: You're saying, in essence, I mean, you're saying in essence, he was operating as a language conduit because there was [00:13:54] Speaker 02: really no dispute about what was said and so on. [00:14:00] Speaker 02: leads you to an inquiry, like the inquiry on the Aseemian, but it wouldn't mean that anything that, it wouldn't lead to the conclusion that you don't have to have any inquiry into that. [00:14:12] Speaker 02: Now you could say, well, maybe there was a sufficient inquiry because we know, but what we know is that this guy's Spanish wasn't so terrific, to put it mildly. [00:14:24] Speaker 02: So we don't know how an Aseemian inquiry would come out or Aseemian-like inquiry. [00:14:30] Speaker 02: You're arguing for no inquiry. [00:14:32] Speaker 02: You're arguing that he could have just got in there and said anything. [00:14:36] Speaker 02: Would there have to be any inquiry into how good his Spanish was or whether he even had any Spanish? [00:14:41] Speaker 04: I mean, there was an inquiry into his Spanish. [00:14:43] Speaker 02: I want to know what's the standard. [00:14:45] Speaker 02: If he had just got up there and said, well, I know enough Spanish to understand. [00:14:49] Speaker 02: I asked him this question and what I understood to be Spanish, and he answered it and what he understood to be Spanish. [00:14:55] Speaker 02: And there was no further inquiry into why he thought that or what his Spanish [00:15:00] Speaker 02: background was. [00:15:01] Speaker 04: The prosecutor underlying case did go through his qualifications to understand Spanish. [00:15:05] Speaker 04: And again, we're dealing with questions of what country you're from, do you have papers to be in this country legally? [00:15:09] Speaker 02: But that right there means that there has to be, that there's a recognition that this isn't the same thing as somebody testifying to what someone else said in their mutual native language. [00:15:22] Speaker 02: The fact that you had that inquiry at all. [00:15:23] Speaker 02: So the question is, what's the inquiry? [00:15:26] Speaker 04: I believe at trial the proper foundation was laid. [00:15:30] Speaker 04: The magistrate judge reserved to allow for foundation to be laid at trial that he was sufficiently proficient in Spanish so that he could communicate with Mr. Lucas Hernandez and then testified to the responses that he received there from. [00:15:41] Speaker 04: I think pivoting back to Nazemian here too, the question is [00:15:45] Speaker 04: Who would Agent Mueller have been a mere conduit of language to? [00:15:49] Speaker 04: Like, Nazemian doesn't apply because it's always a third-party interpreter case. [00:15:53] Speaker 02: Moreover— But that's the facts of it. [00:15:55] Speaker 02: But the reason for it is because the person is not actually saying those words. [00:15:59] Speaker 02: And that's true here. [00:16:01] Speaker 04: I wouldn't say that that's true here, Your Honor. [00:16:03] Speaker 04: As far as the record reflects, the only person who testified to the meaning of those words in the cross-examination that occurred was Mr. Lucas Hernandez, admitted to being a Mexican citizen without documents to be in this country legally. [00:16:15] Speaker 04: and he'd entered this country illegally. [00:16:17] Speaker 04: So switching back to Nazemian, I think one of the bigger issues too, in addition to Mr. Lucas Hernandez and Mr. Agent Mueller not having a interpreter, was that there was no extrajudicial interpretation of Mr. Lucas Hernandez's testimony. [00:16:34] Speaker 04: The translation that was given [00:16:36] Speaker 04: by Agent Muller was given in court and was therefore not extrajudicial. [00:16:40] Speaker 04: Nazamian addressed how to treat extrajudicial statements made through an interpreter when the testifying witness did not understand the original language of the testifying witness of the declarant and that could only speak to the testifying to the translated statements of the interpreter. [00:16:56] Speaker 04: So Nazamian itself does not apply here. [00:17:00] Speaker 01: Could the magistrate judge have found Mr. Lucas Hernandez guilty without his admissions? [00:17:06] Speaker 04: Yes, Your Honor. [00:17:07] Speaker 04: Given the testimony of the other Border Patrol agent who testified to the fact that in his A-file there was approximately 12 prior times that he had been deported, that he was found 16 miles east of the Tecate, California, port of entry, three and a half miles north in a remote, rugged, sparsely populated area at the bottom of a 20-foot sand ditch, all of those factors indicate independently that Mr. Lucas Hernandez had entered the country illegally. [00:17:35] Speaker 04: unless the court has any further questions. [00:17:37] Speaker 04: Any other questions? [00:17:40] Speaker 02: None. [00:17:40] Speaker 02: Well, I'm still trying to puzzle out what standards you're arguing for because you seem to be saying that really that something like Nazimian was actually met here. [00:17:59] Speaker 02: Is that what you're saying? [00:18:00] Speaker 02: Because there was an inquiry into this person's Spanish competence and [00:18:05] Speaker 02: the magistrate thought it was sufficient. [00:18:08] Speaker 04: I think, and thanks for the opportunity to clarify, I'm only using the fact that his Spanish was proficient to say that New Zealand doesn't apply. [00:18:14] Speaker 02: Well, Spanish wasn't proficient. [00:18:15] Speaker 02: We know it wasn't proficient. [00:18:16] Speaker 02: It might have been good enough for this marginally, but it wasn't proficient. [00:18:19] Speaker 04: Yes, Your Honor, and that's the point, is it was proficient enough for this. [00:18:22] Speaker 04: So I think the larger point is like, this is also just a party admission under 801D2A. [00:18:27] Speaker 04: So it's a lay witness testifying to what he saw and heard. [00:18:31] Speaker 04: So I know the court is inquiring into the question. [00:18:33] Speaker 04: But then I also think. [00:18:35] Speaker 02: I'm sorry. [00:18:36] Speaker 02: I just keep repeating. [00:18:37] Speaker 02: He wasn't testifying to what he saw and heard, because he wasn't testifying to what he heard. [00:18:42] Speaker 02: Because what he heard was Spanish. [00:18:44] Speaker 04: Yeah, meco, no, and yes, like those are very similar words. [00:18:50] Speaker 03: Well, to me, the bigger concern is what he said, right? [00:18:53] Speaker 03: Because I think Council pointed out in some of the various questions in which you can ask those questions. [00:19:00] Speaker 03: I mean, I think that's the concern. [00:19:03] Speaker 03: And so what we're having to accept is the agent's understanding of what those words meant that he said. [00:19:13] Speaker 04: And I think we can also look to Mr. Lucas Hernandez's response to those questions as testified by Agent Mueller. [00:19:18] Speaker 04: Again, Agent Mueller testified that there was no misunderstanding, that he didn't appear to have trouble communicating with Mr. Lucas Hernandez or the other two individuals who were there with him. [00:19:27] Speaker 04: So there's no other record of any misunderstanding. [00:19:32] Speaker 02: In terms of the possibilities for [00:19:38] Speaker 02: in accuracy and mistranslation, it's considerably higher in these circumstances than in an azimuth circumstance, actually. [00:19:47] Speaker 02: I mean, both in the sense that this person seems to have less competence and more reason to not be very accurate. [00:19:59] Speaker 04: I wouldn't say that that gives Agent Mueller more reason not to. [00:20:01] Speaker 04: He's conducting an investigation to determine whether or not an illegal entry has occurred. [00:20:09] Speaker 04: unless the court has further questions. [00:20:11] Speaker 04: Thank you, Your Honor. [00:20:11] Speaker 03: Thank you. [00:20:12] Speaker 03: Thank you. [00:20:21] Speaker 00: Your Honor, once again, addressing why the actual words matter. [00:20:26] Speaker 00: I know the government said that Mr. Lucas never expressed not understanding what the agent said, but again, I turn to the Ramos case [00:20:33] Speaker 00: where that deportation officer also said that she felt that the detainee understood. [00:20:39] Speaker 00: And that court found that in a detainee understanding or her feeling that a detainee understood her broken attempts to speak Spanish was insufficient, especially when there was not an interpreter there. [00:20:50] Speaker 01: But she was asking much different questions. [00:20:53] Speaker 01: She was performing an interview in a processing station asking something beyond three simple questions. [00:21:02] Speaker 00: She was asking questions that she considered to be standard questions, route questions about findings. [00:21:07] Speaker 00: But she was interviewing him. [00:21:11] Speaker 00: Correct. [00:21:11] Speaker 00: She was interviewing them with regard to signing a stipulated removal order. [00:21:15] Speaker 00: But again, it was a situation where she asked the same questions. [00:21:19] Speaker 00: She asked that question hundreds, if not thousands of times. [00:21:22] Speaker 00: But then when she actually had to testify to the actual words that she said in Spanish, it was not understood, and the interpreter could not translate them. [00:21:31] Speaker 03: Any final point? [00:21:32] Speaker 00: No, Your Honor, thank you. [00:21:33] Speaker 00: Thank you. [00:21:34] Speaker 03: Thank you. [00:21:38] Speaker 03: The matter of Lucas Hernandez will stand submitted, and we will take a short recess at this time.