United States v. Claudio Romo-Chavez

Opinion by Judge O’SCANNLAIN; Concurrence by Judge BERZON.

OPINION

We must decide whether the Confrontation Clause or the Federal Rules of Evidence prohibit the government from introducing at trial a defendant’s admissions to a police officer because the translator who facilitated them, while conversationally fluent, would not qualify as a court interpreter.

I

Claudio Romo-Chavez is a citizen and national of Mexico. In May 2009, he attempted to enter this country at the De-Concini Port of Entry in Nogales, Arizona, driving a 1999 Buick Century. During primary inspection, he was greeted by Customs and Border Protection (“CBP”) Officer Brian Tipling. Romo-Chavez told Officer Tipling that he was from Magdalena, Mexico, and that he was entering the United States to return two shirts to the Dillard’s store in Scottsdale. Finding the story suspicious, Officer Tipling employed a long-handled mirror to examine the underside of Romo-Chavez’s vehicle and found evidence of tampering on the bolt holding the fuel tank to the undercarriage.

Romo-Chavez was referred to secondary screening, where he told CBP Officer *958 David Aldrich that he was from somewhere between Obregon and…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-10424 Plaintiff-Appellee, D.C. No. v.  4:09-cr-01045-

CLAUDIO ROMO-CHAVEZ, FRZ-JCG-

Defendant-Appellant.  OPINION

Appeal from the United States District Court for the District of Arizona Frank R. Zapata, Senior District Judge, Presiding

Argued and Submitted December 6, 2011—San Francisco, California

Filed May 23, 2012

Before: Diarmuid F. O’Scannlain and Marsha S. Berzon, Circuit Judges, and Robert S. Lasnik, District Judge.*

Opinion by Judge O’Scannlain; Concurrence by Judge Berzon

*The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation.

5677 5680 UNITED STATES v. ROMO-CHAVEZ

COUNSEL

M. Edith Cunningham, Assistant Federal Public Defender, Tucson, Arizona, argued the cause and filed the briefs for the appellant. With her on the briefs was Jon M. Sands, Federal Public Defender for the District of Arizona.

Bruce M. Ferg, Assistant United States Attorney, Tucson, Arizona, argued the…

concurring:

I disagree with the majority as to the question whether Agent Hernandez spoke Spanish well enough that he could reasonably be viewed in his role as out-of-court translator as a “conduit” for Romo-Cha-vez, thereby precluding application of the hearsay rule with regard to the statements he made to Agent Simboli. In the context of the rest of the record in this case, however, the admission of Agent Hernandez’s translation was harmless. I therefore concur in the result as to the Nazemi-an issue. See United States v. Nazemian, 948 F.2d 522 (9th Cir.1991). I also concur in the remainder of the majority opinion, albeit with the same caveat regarding the survival of Nazemian after Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), as I expressed in United States v. Hieng, 679 F.3d 1131 (9th Cir.2012) (Berzon, J., concurring).

I.

The record establishes that Hernandez’s grasp of Spanish was quite weak — much weaker than the majority opinion makes it out to be.

For example, although the opinion says that Hernandez “grew up ... speaking Spanish,” Hernandez actually testified that he “grew up listening to Spanish.” In other words, Hernandez’s…