United States v. Richard Olvera

Opinion by Judge O’SCANNLAIN; Dissent by Judge FERNANDEZ.

May a defendant be compelled at trial to recite statements made during a crime?

I

On July 9, 1991, a man wearing a cap and dark sunglasses entered the Security Pacific Bank in San Diego, California and cut in line to approach bank teller Rosa Ybarra. The man told Ybarra, “[w]hy don’t you give me your money?” After Ybarra said “[h]uh?,” the man said, “[g]ive me all of your money.” He repeated his command in Spanish, instructing Ybarra, “[d]ame tu dinero.” As Ybarra began giving him the money in her cash drawer, he told her to “[h]urry up.” The man then took the money and fled the bank.

Ybarra and another teller later told the Federal Bureau of Investigation (“FBI”) that *1196 the bank robber was a 5’5” tall Hispanic male who had a mustache and some missing teeth. After viewing photo line-ups, Ybarra identified Richard Olvera as the robber. The other teller also picked Olvera and two other individuals out of the line-up. The FBI subsequently arranged for Olvera to appear in a live line-up, where Ybarra and the second teller identified Olvera as the robber.

The government charged Olvera with one count of unarmed bank…

dissenting:

I do not agree that Olvera’s constitutional rights were violated when he was required to speak the words that the robber had used.

It is plain that having him parrot words after the witness did not implicate his privilege against self-incrimination. Simply put, there was nothing testimonial about that. See, e.g., Pennsylvania v. Muniz, 496 U.S. 582, 590-600 , 110 S.Ct. 2638, 2644-49 , 110 L.Ed.2d 528 (1990); United States v. Dionisio, 410 U.S. 1, 5-7 , 93 S.Ct. 764, 767-68 , 35 L.Ed.2d 67 (1973); United States v. Wade, 388 U.S. 218, 221-23 , 87 S.Ct. 1926, 1929-30 , 18 L.Ed.2d 1149 (1967). Nor does the fact that he was asked to repeat some words in Spanish change the analysis or the result. That did not disclose the contents of his mind. See Doe v. United States, 487 U.S. 201 , 210 & n. 9, 108 S.Ct. 2341 , 2347 & n. 9, 101 L.Ed.2d 184 (1988). It was no more redolent of testimony about mental processes than is speaking in English. It only demonstrated the sound of his voice. If the words incriminated him, that was because of the way they sounded, not because of their content. Indeed, contrary to his argument, his ability to repeat Spanish words does not even prove…

30 F.3d 1195 UNITED STATES of America, Plaintiff-Appellee, v. Richard OLVERA, Defendant-Appellant. No. 93-50234. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 8, 1994. Decided July 27, 1994. Robert L. Swain, Swain & Vance, San Diego, CA, for defendant-appellant. Alana M. Wong, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before: PREGERSON, O'SCANNLAIN, and FERNANDEZ, Circuit Judges. Opinion by Judge O'SCANNLAIN; Dissent by Judge FERNANDEZ. O'SCANNLAIN, Circuit Judge: 1 May a defendant be compelled at trial to recite statements made during a crime? 2 * On July 9, 1991, a man wearing a cap and dark sunglasses entered the Security Pacific Bank in San Diego, California and cut in line to approach bank teller Rosa Ybarra. The man told Ybarra, "[w]hy don't you give me your money?" After Ybarra said "[h]uh?," the man said, "[g]ive me all of your money." He repeated his command in Spanish, instructing Ybarra, "[d]ame tu dinero." As Ybarra began giving him the money in her cash drawer, he told her to "[h]urry up." The man then took the money and fled the bank. 3…