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UNITED STATES v. QUESADA MOSQUERA

March 16, 1993

UNITED STATES OF AMERICA
v.
LUIS FERNANDO QUESADA MOSQUERA, JOSE RAMIREZ RAMIRO a/k/a "Pollo", JAVIER QUESADA MOSQUERA, DIEGO QUESADA MOSQUERA, CLAUDIA TOBON-MUNOZ, JIMMY VELOSA-MONTENEGRO a/k/a "Chino", GUILLERMO FERNANDEZ a/k/a "Nato", FANNETH MUNOZ-GOMEZ, GLADYS TORO, MARTA GARCIA, JOHN HOYOS a/k/a "Checo", EFINGINIO ROJAS a/k/a "Victor Mesa", RAUL CANO, ALVARO ORTIZ, ROBERTO CERCHIARA, NORBERTO CASTRO a/k/a "Beto", MAURICIO GRAJALES GUEVARA a/k/a "Ramiro" a/k/a the "Doctor", HECTOR MEDINA a/k/a "Kevin" a/k/a "065", Defendants.



The opinion of the court was delivered by: JACK B. WEINSTEIN

 Weinstein, J.:

 I. FACTS AND PROCEDURAL HISTORY

 There are eighteen Spanish-speaking defendants in these related complex cases alleging narcotics and money-laundering offenses. All require interpreters. Each defendant is represented by a different lawyer. Ten lawyers are privately retained. Eight are assigned pursuant to the Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A.

 The government's evidence includes some 10,000 documents. There are also more than 550 tape recordings and transcripts of those tapes obtained through wiretaps. Because of the difficulties in coordinating communication of defense counsel with the court and with the government in this complex case, and in an attempt to reduce delays and CJA costs, Administrative Coordinating Counsel was appointed. See United States v. Mosquera et al., 813 F. Supp. 962 (E.D.N.Y. 1993).

 On December 9, 1992, at a conference with defendants and their counsel, all present recognized the obstacles faced by the non-English speaking defendants in fully understanding the nature of the proceedings. The single interpreter assigned to simultaneously translate the proceedings for all the defendants was, in the court's view, unable, despite her excellent skills, to keep each individual defendant fully apprised of what was going on. The defendants did not even have a copy of the original indictment in a language they could understand and discuss with their friends, relatives and counsel.

 The court issued an order that states in pertinent part:

 
The government shall supply a copy of the indictment translated into Spanish for each defendant. All documents, except motion papers and original evidence, shall be translated into Spanish.

 On January 15, 1993, the government moved for reconsideration of the order on the grounds that 1) the court exceeded its authority because the order is not supported by any constitutional statute or rule nor is it a valid exercise of the court's supervisory power and 2) compliance with the order would be "so burdensome as to be plainly unreasonable." Government's Mem. of Law at 5. The government also contends that Congress did not make an appropriation for this purpose and that courts lack power to act where money will need to be expended without Congressional appropriation. Letter filed March 10, 1993.

 All interested parties were invited to submit briefs in response to the government's motion. Argument was heard on March 3, 1993. The court expresses its gratitude to counsel for amici, defendants and the government for their helpful briefs and oral presentations.

 Both in New York City and in the suburban counties of Nassau and Suffolk, the Eastern District of New York is becoming more and more multilingual. See Agencies Face Language Barriers, N.Y. Times, July 4, 1992 at B8 (nearly 40 percent of New York City's population speaks a language other than English). The number of non-English speaking immigrants has risen dramatically in the past ten years. It has been estimated that nearly 31 million people in the United States do not use English as their primary language. See John M. Knox, Courts are Dialing for Interpreters, Nat. L. J., Feb. 1, 1993 at S10. The language barrier is affecting our court system by "increasingly impeding the swift, effective delivery of justice." Id. See also Katherine Long, Immigrants Pose Challenge for Courts - Critical Differences Cause Trouble, Seattle Times, Nov. 30, 1990 at C3 ("A defendant who doesn't speak English presents a peculiar problem to the judicial system. Sometimes, for example, the crime they're accused of is common practice in their home country . . . The very concept of the American-style judicial system is completely foreign.").

 In 1991 interpreters were required in more than 68,000 federal court proceedings. Court Interpreters Adapt to Changing Populations, The Third Branch, Feb. 1993 at 2. In the Eastern District alone, in fiscal year 1992, there were a total of 3,019 in-court and 554 out-of-court recorded events requiring interpreters in all languages. Records, Clerk of the Court, Eastern District of New York.

 The interpretation problem is far more pervasive than court records indicate. In many instances when interpreters are not available, conversations between counsel and client or defendant and government or court personnel take place in halting English or, in the case of a few attorneys who are fluent in a foreign language, in the foreign language. Sometimes relatives or friends of defendants or privately retained interpreters are relied upon outside the courtroom.

 Regrettably, the courts are faced with a severe shortage of qualified interpreters to handle this increasing multilingual caseload. Generally interpreters are certified by way of examination. Currently, however, certification examinations are offered only for Spanish, Haitian-Creole, Navajo and sign language. Court Interpreters Adapt to Changing Populations, The Third Branch, Feb. 1993 at 2. Programs are underway to develop examinations for ten other languages. Id.

 There are only sixty staff interpreters assigned to all the federal courts, and 430 certified free-lance interpreters. Id. Where less common languages are involved, the clerk of the court must find an interpreter. The demands on such interpreters are high -- they must not only be familiar with the informal slang of the defendants they assist, but also with technical and legal terms. As a result, the pass rate for the certification examination is only about 24 percent for the written portion and under 4 percent for the written and oral portions combined. Id.

 The situation in the Eastern District of New York is particularly critical. The thirteen judges and nine magistrates are served by only three staff interpreters for Spanish. Report of the Clerk of the Court, Eastern District of New York. The District has requested that two more staff interpreters be assigned, and one has been allotted effective October 1993. Id. The costs in this District for interpretation services are substantial. In fiscal year 1992 nearly half a million dollars was disbursed for interpreters fees. Id. For 1993 it is estimated that the district's projected need will far exceed its allotment. Id.

 
The cultural differences are . . . dramatic between what we monolithically construe as our Anglo-Saxon or Judao-Christian or American system, [and foreign cultures. We cannot say that] someone. . .who grew up in a Puerto Rican family in New York or a Cuban American family in Florida. . . speaks the same language as someone of Italian descent from Argentina, [or] someone from the closed Indian society of Quito or La Paz. . . .
 
These people come from a country [,Colombia,] where the Napoleonic Code is in force. . . . Possession is actual, it's never constructive. The concept of conspiracy doesn't exist. The word "sentence" means any decree of the court. "Juicio" means trial. . . . To [defendants] "juicio" is every time they come to court.
 
The idea of having a complaint . . . the concept of dominion and control . . the concept of exercising all the attributes of possession by what you say and what you do are [completely] foreign to a country where [it is very possible they might not] get due process.

 Our institutions and our laws have partially responded to linguistic changes in our population. See, e.g., Voting Rights Language Assistance Act of 1992, 42 § 1973aa-1a (expanding requirement that voting materials and ballots be published in the minority language to groups with more than 10,000 voting-age citizens with limited English proficiency in a county as counted by the U.S. Census Bureau). The revised voting standard translates into a requirement that bilingual ballots in Chinese be used for the first time in New York City. Outlook, Asian American Legal Defense and Educational Fund, Winter, 1993 at 1. See also Court Interpreters Act, 28 U.S.C. §§ 1827, 1828 (establishing a program to facilitate the use of interpreters in judicial proceedings instituted by the United States); Lau v. Nichols, 414 U.S. 563, 39 L. Ed. 2d 1, 94 S. Ct. 786 (1974) (mandating creation of appropriate programs for non-English speaking Chinese students in San Francisco school system who were being denied meaningful opportunity to participate in the public education program); Aspira Consent Decree (mandating program of bilingual education for students of hispanic origin in the New York City Public Schools) as described in Aspira of New York, Inc. v. Board of Education of the City of New York, 423 F. Supp. 647 (S.D.N.Y. 1976). See generally Note, "Official English": Federal Limits on Efforts to Curtail Bilingual Services in the States, 100 Harv. L. Rev. 1345, 1349-53 (1987) (overview of federal recognition of language minorities' rights).

 It is interesting to note that the New York City school system has recognized the special due process problems presented by non-English speaking students and their families. When a student is suspended because of a serious offense such as weapons possession or assault, the Hearing Office ascertains the language spoken by the student and his family. The official suspense notification letter and the procedures to be followed are available to be sent to the family in five foreign languages (Spanish, Chinese, Haitian-Creole, French and Korean) as well as in English. An interpreter is provided at the hearing. See materials on file under CR 92-1228 (E.D.N.Y.).

 I. LAW

 A. Authority of the Court

 1. Constitutional

 Important Sixth Amendment rights are implicated in the court's order of December 9. These include the right to be meaningfully present at one's own trial, to assist in one's own defense, to have effective assistance of counsel and to confront the ...


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