dissenting:

Because I feel that the majority’s construction of FRE 801(d)(2) as applied to the admitted facts in this case is completely wrong, I am obliged to file this dissent. The statements read into evidence by Hardeman were not hearsay, and, therefore, were properly admitted:

I.

The Rule under consideration provides, among other things:

The majority emphasizes that since the appellant never read or signed the document prepared by the adverse witness Hardeman, the statements contained therein could not be the appellant’s “own statement” within the meaning of FRE 801(d)(2)(A). Consequently, the majority concludes that the statements were hearsay and should not have been admitted into evidence. This approach completely ignores the fact that the appellant has never questioned the voluntariness of the interview or the accuracy of the translation. Deputy Hardeman swore that the statements read from the document accurately reflected the statements of the appellant as translated by Officer Tolavera. Tolavera testified that he had no trouble understanding the appellant’s Spanish, and that he translated truly and accurately. Appellant does not question the integrity of either Hardeman or *1305 Tolavera. In addition, there is nothing in the record that suggests that the statements read into evidence were anything other than an accurate translation of the admissions of the appellant.

Despite these facts, the majority has concluded that these admissions could not be the appellant’s “own statement” for purposes of FRE 801(d)(2)(A). If its rationale is taken to its logical conclusion, a non-English speaking defendant’s confession, regardless of its accuracy or voluntariness, could never be admitted into evidence unless he subsequently signs or adopts the statement once it is reduced to writing in English. But, would the defendant understand the English writing any better than he would understand the oral translation of an interpreter? The obvious answer is no. The majority states that “A contrary result would produce dangers unacceptable in the context of criminal prosecutions.” And yet, the record in this case does not disclose even the hint of any abuse. The appellant clearly trusted Tolavera or he would not have consented to his use as an interpreter. And again, I must emphasize that the appellant does not challenge the integrity of Hardeman or Tolavera, the voluntariness of the interview, or the accuracy of the translation. In light of this, the majority’s conclusion is an affront to both common sense and the interests of justice.

The only authority cited in support of the majority’s theory is Wong Sun v. United States, 371 U.S. 471, 491 , 83 S.Ct. 407, 419 , 9 L.Ed.2d 441 (1963), and 7 Wigmore Evidence 2134 (Chadbourn Rev. 1978). Neither authority gives support to this theory. In Wong Sun , the Supreme Court stated:

In Wong Sun , the defendant knew that he was making a confession even though he could not understand the English words. Here, the appellant clearly knew that he was making a statement concerning his unexcused absence from the prison. By his consent to the interview and his failure to question the accuracy of the translation, the appellant can be said to have adopted the substance of Hardeman’s statement, even though “he could not comprehend the English words” as in Wong Sun . As stated in Wong Sun , the translation and the transcription of Hardeman’s notes should go to the weight of the evidence, and not to its admissibility. See also, United States v. Tijerina, 412 F.2d 661, 664 (CA10 1969), cert. denied 396 U.S. 990 , 90 S.Ct. 478 , 24 L.Ed.2d 452 ; Lugo v. United States, 370 F.2d 992, 995 (CA9 1967), cert. denied 388 U.S. 916 , 87 S.Ct. 2130 , 18 L.Ed.2d 1357 . As to the Wigmore citation, this is nothing more than a statement of general law having no application to the facts before us.

Absent a showing of abuse, and assuming the accuracy of the translation and the voluntariness of the interview, there is no reason why the language of an interpreter should not be considered the statement of a defendant. The interpreter is merely serving as a language conduit. United States v. Ushakow, 474 F.2d 1244, 1245 (CA9 1973); United States v. Tijerina, supra.

In addition, I urge that even if the admission is not considered the appellant’s “own statement” under FRE 801(d)(2)(A), it was still a statement of appellant’s agent under FRE 801(d)(2)(D). Since the appellant voluntarily consented to the use of the interpreter, Tolavera became his agent for the purpose of communicating with Hardeman. See, e.g. United States v. Santana, 503 F.2d 710, 717 (CA2 1974), cert. denied 419 U.S. 1053 , 95 S.Ct. 632 , 42 L.Ed.2d 649 . Beyond question, the English translation of appellant’s admissions were statements by appellant’s “agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship.”

*1306 II.

In view of my conclusion that appellant’s statement cannot be considered as hearsay under FRE 801(d)(2)(A) or FRE 801(d)(2)(D), there is no need to comment on the majority’s various arguments and citations with reference to exceptions to the hearsay rule. Obviously, the exceptions have no application to a factual portrait where the hearsay rule is not involved.

III.

Appellant is in no position to challenge the form of the statement which was received in evidence for the reason that his only objection to its introduction was that it constituted hearsay. Here, I turn to the rule which precludes him from raising other possible objections to the statement’s introduction at this stage of the proceedings. It is fundamental that the failure of a litigant to make a timely objection to alleged errors (regardless of subject matter other than jurisdiction) waives those objections for purposes of appeal unless the error is so fundamental as to result in a miscarriage of justice. In re Southland Supply, Inc., 657 F.2d 1076, 1079 (CA9 1981); Ahmad v. American S.S. Mutual Protection & Indemn. Ass’n., 640 F.2d 993, 996 (CA9 1981); Friedman & Jobusch, Architects & Engineers v. C.I.R., 627 F.2d 175, 177 (CA9 1980); Adams v. United States, 318 F.2d 861, 865 (CA9 1963). If other objections had been made, the statement could have been used to refresh the recollection of the officer and essentially the same testimony would have been received. Here there was no miscarriage of justice.

For that matter this universal statement of law is codified in the Federal Rules of Evidence § 103 from which I quote:

Clearly, appellant is bound by his sole objection.

CONCLUSION

Accordingly, under either the “language conduit” or the “agency” approach, the statements read into evidence were not hearsay and were properly admitted. To hold otherwise makes a mockery of common sense, the Federal Rules of Evidence, and the common law. I would affirm the conviction.