GUILTY BY ALL!

Rafael CarrilloMay 2009

PART I

More than a dozen members of the notorious Mexican Mafia were arrested today in a series of early morning raids throughout the San Fernando Valley. A combined FBI, LAPD, DEA and ICE task force served search and arrest warrants targeting numerous locations and seized weapons, drugs and money.

125 arrested in child porn roundupPOSTED: 8:07 p.m. EDT, October 18, 2006

(CNN) -- Federal officials arrested more than 125 people Wednesday on charges of subscribing to a Web site that depicted children as young as infants engaged in sexual activities with adults.

Hundreds Are Arrested in U.S. Sweep of Meat Plant By SUSAN SAULNYPUBLISHED: MAY 13, 2008

In the biggest workplace immigration raid this year, federal agents swept into a kosher meat plant on Monday in Postville, Iowa, and arrested more than 300 workers.

Wake up call.

• An Interpreter Speaking Up for Migrants http://www.nytimes.com/2008/07/11/us/11immig.html

Issues Raised• Defendants did not understand the rights they waived.• Rapid pace of proceedings (262 cases in one week).• Pressure placed on defendants and attorneys by type of charges

filed.• Defendants given option to plea and get 5 months or face ID theft

charges.• Attorneys had little time and privacy to meet with clients.• Governments responded, “All defendants were provided

experimented criminal attorneys and interpreters.” • Reactions by interpreter community were mixed, some calling the

essay as unusual, not common practice, unethical.• Attorney client conversations were revealed with attorney and client

consent.

CASE LAW

Conflict

• State v Izaguirre, 1994 (272 NJ Super) The same interpreter was used for pretrial interviews with defense psychiatrist and state’s psychiatrist. The claim on appeal was that defendant’s conviction was tainted. The court affirmed the conviction and ruled that absent a showing of harm such as breach of confidentiality, the use of one interpreter does not invalidate a conviction. However, the appellate opinion stated it would be preferable to have two different interpreters in such circumstances.

Nehimaya-Guerra v. Gonzales177 Fed.Appx. 729

C.A.9,2006.April 25, 2006

The removal proceeding at issue was a group hearing involving fifteen individuals. When the IJ asked if any of those present were minors, Nehimaya did not identify himself. When the IJ later spoke to Nehimaya individually, no inquiry was made as to his status as an adult or minor.

The Court can’t accept admissions from people under 18 without representation the case was remanded because of due process violations.

U.S. v. Lopez-Vasquez985 F.2d 1017

C.A.9 (Cal.),1993.

Question and Answer

Lopez Vazquez.wpd

Because neither Lopez-Vasquez nor the district court considered the question of prejudice and the record is

incomplete, we are unable to determine whether Lopez-Vasquez can provide “some concrete evidence indicating that the violation of [his right to appeal] actually had the potential for affecting the outcome of [the] deportation

proceedings.” REMANDED

U.S. v. Pallares-Galan359 F.3d 1088

C.A.9 (Nev.),2004.

• Here, the government has failed to provide “clear and convincing” evidence to establish Pallares' “intentional relinquishment” of the right to appeal. Like the respondent in Mendoza-Lopez, Pallares was unrepresented by counsel; he also relied on an interpreter to understand the proceedings. In this context, the IJ's brief explanation regarding Pallares' right to appeal fell far short of the detailed description offered in Lopez-Vasquez (which was found nevertheless to be insufficient in light of the circumstances).

•REVERSED and REMANDED.

U.S. v. Nicholas-Armenta763 F.2d 1089

C.A.9 (Cal.),1985.

• Alien was convicted in the United States District Court for the Central District of California, Cynthia Holcomb Hall, J., of entering the United States after deportation, and he appealed collaterally attacking the underlying deportation. The Court of Appeals, Goodwin, Circuit Judge, held that: (1) alien charged with illegal reentry after deportation could challenge collaterally in criminal case legality of deportation, and (2) demonstrably deportable alien who claimed that 33-person deportation hearing violated due process as a matter of law failed to demonstrate actual prejudice.

Affirmed

• In this case, due process was protected by the painstaking efforts of the immigration judge to provide a full and fair hearing. See Tejeda-Mata, 626 F.2d at 726. The transcript of the hearing shows that (1) Nicholas-Armenta was the thirty-third respondent; (2) it was conducted through an interpreter; and (3) the entire hearing lasted only an hour and twenty-five minutes, including time for translation. Despite these disadvantages, however, the transcript reflects the judge's careful and, where necessary, particularized, inquiries of each of the 33 persons before him, and his sensitivity to the potential for linguistic and other confusion on the part of those facing deportation.

•

• Nicholas-Armenta is a demonstratably deportable alien whose only claim is that a group hearing is unconstitutional per se. He does not make a factual challenge to the trial court's finding that he waived an individualized hearing after one was offered to each member of the group. He does not claim that he had a defense to the 1981 deportation. Most important, he does not profess, and the record does not show, actual prejudice.

•We leave to another court, to which a deported alien tenders a claim of prejudice, the task of deciding what the actual effect of a mass deportation hearing may be upon the due process rights of an alien when prejudice is asserted. We join the Calles-Pineda panel in expressing disapproval of the Immigration and Naturalization Service's persistence in creating an obvious threat to due process by holding deportation hearings for ever larger numbers of people. This court will take a hard look at the prejudicial effect of such a practice in any case in which prejudice is alleged.

Flores-Figueroa V. United States

• Flores-Figueroa v. United States, 556 U.S. ___ (2009), was a decision by the Supreme Court of the United States, holding that the law enhancing the sentence for identity theft requires proof that an individual knew that the identity card or number he had used belonged to another, actual person. Simply using a Social Security Number is not sufficient connection to another individual.

• Ignacio Flores-Figueroa, an illegal alien from Mexico, used a counterfeit Social Security card bearing his real name and a false Social Security number to obtain employment at a steel plant in East Moline, Illinois. Though he did not know it, the number belonged to a real person, a minor. The question in the case was whether workers who use false Social Security and alien registration numbers must know that they belong to a real person to be subject to a two-year sentence extension for "aggravated identity theft."

• Specifically, the case hinged on whether the adverb "knowingly" applies only to the verb or also to the object in 18 U.S.C. §1028A(a)(1) (which defines aggravated identity theft): "Whoever [...] knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person [...]".[1]

• In a unanimous decision delivered by Justice Breyer delivered on May 4, 2009, the Court held that a prosecutor must be able to show that a defendant knew that the identification he used actually belonged to another person.

Codes of Ethics

• NAJIT http://najit.org/documents/NAJIT%20Code%20of%20Ethics.pdf

• State Codes http://www.courtethics.org/Interpreter%20Codes.htm

• US Courts http://www.uscourts.gov/interpretprog/Standards_for_Performance.pdf

• Standards_for_Performance.pdf

Where is all this happening?

YOUR BACK YARD

The Participants and Parties

• US Marshals• Defendants• Defense Attorneys • Prosecutors• Probation and Pretrial Officers• Court Room Deputies• Court Reporters• Judge• Am I forgetting somebody????• The Interpreter

US Marshals

• Coordinate with USMS all your movements and defendant movements.

• Establish communication for USMS instructions while defendants have their headsets on for defendant traffic before, during and after the hearing.

• Do not hand anything to defendants without USMS permission.

• Do not serve as a messenger for defendants or their families.

Defense Attorney

• Defense attorney should and probably will have a conversation with defendants individually, collectively or both before the hearing.

• Attorney should explain what the defendants should expect and the interpreter’s role.

• Ask attorneys to stay close to microphones.• Establish procedure for attorney client

consultation during hearing.• Bring to the attention of the attorney any

suspected medical, mental or other problem.

Prosecutor

• Approach the prosecutor the same way you did the defense attorney, professionally.

• Ask them to watch their speed and try to be clear when reading information.

• Explain that you will inform them if they need to slow down.

Probation & Pretrial

• Ask them to speak close to microphones.

• Ask for the opportunity to review any document that will be read into the record or referenced.

• Ask them to watch their speed and try to be clear when reading information.

• Explain that you will inform them if they need to slow down.

Courtroom Deputy

• Inform CRD of any suspected medical, mental or other problems you detected.

• Ask CRD to set a special defendant order when deemed necessary.

• Request to see the Judge if you believe the Judge should be informed of special circumstances, problems or conflicts of interest.

Court Reporter

• Be nice!!!!

• Court Reporters are a good source of information for the Court’s standard procedures.

• Coordinate with the court reporter when you will provide spelling of names or places.

Yes Your Honor!

• Rule number one is….• …the Judge is always right!• If this is the first time you work with a Judge ask

to speak to him/her before the hearing.• Ask how the Judge prefers to handle “group

hearings”. • Inform the Judge of any interpretation related

problem you think may arise.• Suggest solutions.

Suggestions to Judges

• Maintain eye contact with defendants.• Be mindful of the speed of proceedings.• Watch the register and keep questions simple.• Give defendants instructions for use of

interpreter and headsets.• Avoid compound questions

– Name, age and education– Do you know how to read, write and understand

Spanish?

• Suggest methods used to clarify spelling of name and places with defendants.

• Inquire about the group sizes and composition.

• Suggest pulling difficult defendants from groups if they are sick, drunk, high, slow or nervous or all of the above.

• Suggest maintaining eye contact with defendants.

• Use of hand signals by Judge when addressing defendants.

Before the hearing

• Defendants are brought into the courtroom by USMS.

• Defendants are asked what language they speak.

• Defendants are read the charging documents.• Defendants are asked their names, place of

origin, financial situation and if they suffer from any medical or mental condition.

Who does all this?

The interpreter!

Who does all this?

•

The Interpreter!

Interaction with defendants• Pay attention to defendants actions and

reactions.

• Treat defendants in a professional and respectful manner.

• Keep your eyes and ears open at all times.

• Look for problems.

• Introduce yourself.

• Explain your role and duties.

• Distribute headsets to defendants, personally if possible.

• Explain to defendants what the headsets are and what they are for.

The interpreter show begins!• Good morning, I am the “Court Interpreter”. My job is to

interpret everything that is said from English to and from Spanish.

• I won’t be able to interpret what you say if I can’t hear you. • I am going to ask everybody a big favor, please answer in a

loud and clear voice.• These are the headsets we will be using to interpret everything

into Spanish.• They are ready to work please put them on and do not move

any of the settings, we are going to test them first to see if they are working properly then we can make adjustments.

• The headsets are worn like this (explain) and this here is the volume button. Do not touch or move this other button because you will hear everything in English.

• Can everybody hear me in Spanish?

• Everything is being recorded so it is important that you speak in a loud and clear voice.

• I understand what you mean when you move your head like this... or when you say uh-huh or nu-uh, but I am not allowed to interpret that, I need to hear your voice, the judge needs to hear your voice.

• It is very important that you hear and understand everything that is said and that we hear and understand everything you say.

• I know you are probably nervous, but if you mumble you may say something like junio and I may hear julio or if you say siete, I may hear diecisiete.

• Remember that I am only your voice in English and the Judge’s voice in Spanish, so when you answer, please address him/her directly.

• Please release the chains because when people get nervous they tend to play with the chains and then I won’t hear what you say because the chains are louder than your voice.

• Please let me know if at any time you are not able to hear, or if the headsets malfunction.

• If something is said and you do not understand, then let your attorney or the judge know and I know that he/she will be glad to explain it to you.

• Make sure that you specify you can’t hear or you don’t understand. If you don’t understand and say “I didn’t hear that”, then they will ask the question the same way and you still won’t understand.

• Explain your role to everybody.• Use hand signals when giving instructions.

Judge

Court Reporter

Defendant SP

Defendant SP

Defendant SP

Defendant SP

Defendant SP

Attorney Attorney Attorney

Prosecutor

Interpreter

Judge

Court Reporter

Defendant SP

Defendant SP

Defendant SP

Defendant SP

Defendant ENG

Attorney Attorney Attorney

Prosecutor

Interpreter

Judge

Court Reporter

Defendant SP

Defendant SP

Defendant SP

Defendant ENG

Defendant SP

Attorney Attorney Attorney

Prosecutor

Interpreter

Judge

Court Reporter

Defendant SP

Defendant ENG

Defendant SP

Defendant SP

Defendant SP

Attorney Attorney Attorney

Prosecutor

Interpreter

Judge

Court Reporter

Defendant SP

Defendant ENG

Defendant SP

Defendant ENG

Defendant ENG

Attorney Attorney Attorney

Prosecutor

Interpreter

Judge

Court Reporter

Defendant Yes

Defendant No

Defendant Yes

Defendant Yes

Defendant Yes

Attorney Attorney Attorney

Prosecutor

Interpreter

Judge

Court Reporter

Defendant No

Defendant No answer

Defendant Yes

Defendant Yes

Defendant Yes

Attorney Attorney Attorney

Prosecutor

Interpreter

Judge

Court Reporter

Defendant SP

Defendant SP

Defendant SP

Defendant SP

Defendant SP

Attorney Attorney Attorney

Prosecutor

Interpreter

Tools

• Pen and Pad.• Docket sheet/calendar.• Access to charging documents.• Electronic dictionary.• Water, lots of water. • Cough drops. • Extra batteries.• Extra headsets if available.

Order in the Court!

• Remember that the interpreter’s answer is the record.

• Group answers.– Yes by all.– Yes to all.– Yes from all.– Yes across the board.

Language Related Problems

• Difference between language spoken and native language.

• Defendants answers in English.

• Defendants changes languages.

• Defendant changes channel on headset.

• Defendant prefers not to use headset.

• Defendant speaks a little English.

Logistic Problems

• Not enough headsets.

• System breaks down.

• Court Reporter or recording device.

• Placement of microphones in courtroom.

• Headsets are too loud, should I adjust them for the defendant?

Ethical & Legal Issues

• Defendant’s family asks you for information on charges and case.

• Defendant’s family asks you to give defendant information.

• Handing documents, phone numbers or other documents to defendants.

• Giving advise to defendant’s family or defendant.• Attorney-Client conversation• During the initial hearing what to do if defendant makes

incriminating statement.• Defendant is sick, drunk, high, or having withdrawals.

Ethical & Legal Issues

• What should I do when an answer is directed to an attorney but through the interpreter?

• Attorney/defendant consent to a group hearing.

• Interpreter fatigue.

Distractions

• Paper shuffling.

• Conversations at counsel table.

• Chains.

• People talking or signaling in gallery.

• Coughing.

Security

• Do not hand defendants sharp objects.• Pick up all metal objects you see around

defendants.• Make sure you don’t become the person who

provides contraband to defendant.• Always be aware of your surroundings.• Avoid placing yourself between a defendant and

a USM.• Keep track of pens, clips, phones, batteries and

personal objects.• Interpreter reaction to security emergency.

Safety

• Sanitize headsets after each use.

• Take extra precautions with defendants that indicate they suffer from contagious illness.

• Use of masks and gloves.

• Wash hands often and use hand sanitizer.

• Reaction and role of interpreter in emergency medical situation.

Practical Tips• Keep as many defendants with headsets on in

areas where equipment works.• Coordinate with USMS rotation of headsets.• Get defendants to answer one by one.• Consult with defendant if unsure of education

level because of country of origin.• Mental problems.• Hearing problems.• Loss of voice. • Question asked “do you all understand......? ”

Special Group Hearings

• Telephonic group hearings.

• Video group hearings.

• Relay group hearings.

• Relay telephonic group hearings.

• Indigenous groups and Mennonites. – Addressing defendants by name in certain

cases– Several people with same last name

Equipment

• Get familiar with equipment, test it yourself and test all headsets.

• Make sure you have plenty of extra batteries.

• You have to understand how the equipment works.

No-No

• Don’t participate in hearings where it is hard for you to hear or understand.

• Do not provide anybody with legal advise.• Do not lose your patience.• Do not answer yes or no by all if you see there is

somebody not answering (medical/legal problem).• Do not serve as a go-between for defendants and their

families.• Do not serve as a legal assistant for defense attorneys.• Do not serve as an investigator for the prosecution.

Thank you!

Rafael Carrillo

Rafael_Carrillo@nmcourt.fed.us

Tel. 915-494-1249