Defendant in False Visa Case Should Have Confronted Interpreter But Error Not Plain – U.S. v. Charles

July 31, 2013 by David S. Seltzer

Because Miami is a city of immigrants, it’s not uncommon for criminal defense attorneys like me to handle immigration-related criminal charges. Some of these cases come with a twist, however: immigrants don’t always speak English well enough to navigate the court system. And when a translator is used, as one was in U.S. v. Charles, the quality of the translation can become an issue. In this case, Manoucheka Charles of Haiti was accused of knowingly using a fraudulent document to travel between the United States and Haiti. She used a Creole interpreter over the phone at the Miami-Dade airport, and a Customs and Border Patrol officer’s testimony about the interpreter’s statements was admitted at trial. The Eleventh U.S. Circuit Court of Appeals ruled that this did violate her right to confront her accuser, but, citing a dearth of precedent, the court found that this error was not plain.

Charles does not dispute that her document was false, but claims she didn’t know it was false. She arrived at the Miami airport and presented a Haitian passport, a customs form and a U.S. form I-512, which is authorization for foreign nationals to travel to and from the U.S. while they are in the process of gaining legal status. The first CBP officer didn’t speak Creole; the second checked the I-512 against the passport and discovered that the names and dates of birth didn’t match. This triggered a third officer, who used an interpreter over the phone to ask Charles questions. At her trial, the interpreter did not testify, but the CBP officer testified as to the responses the interpreter provided. Thus, Charles was unable to cross-examine the interpreter about seemingly incriminating phrases that may have been less incriminating in Creole. She was convicted.

On appeal, Charles argued that her Confrontation Clause rights were violated when the CBP officer testified about the interpreter’s statements without her having a chance to cross-examine the interpreter. The Eleventh Circuit agreed, but said that because Charles didn’t bring the issue up at trial, it could only reverse for plain error. And because the issue has not been addressed by binding precedent, the court said, it could not conclude that the error was plain. Under the Confrontation Clause, there are really two sets of statements: what Charles said in Creole and what the interpreter translated those statements to in English. Interpreters translate concepts more than words, the court noted. Thus, Charles should have been able to confront the translator, the Eleventh concluded, and no exceptions apply. But there is no binding precedent on the issue from the Eleventh Circuit itself or the U.S. Supreme Court, the Eleventh noted, so it declined to reverse.

The circumstances of Charles’s false I-512 suggest that she may have been cheated, which is a common story heard by immigration crime defense lawyers like me. Immigrants don’t have any reason to understand how U.S. law works, and sometimes, charlatans take advantage of that ignorance to sell them documents that will never stand up to close scrutiny. Unfortunately, being victims doesn’t prevent these people from getting into legal trouble in the United States, as Charles did. It’s encouraging that the Eleventh Circuit acknowledged that important nuances can get lost in translation, a precedent that I hope will help other immigrants facing criminal charges.

Seltzer Law, P.A., represents clients accused of serious crimes throughout the state of Florida. We answer the phone 24 hours a day and seven days a week because we know police don’t stop working after 5 p.m. If you’d like to talk to us about your situation and your legal rights, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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