USA v. Quinones-Davila et al

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
UNITED STATES OF AMERICA 	)
)
v. 	) 	Criminal Action No. 2016-0009
)
JEAN CARLOS VEGA-ARIZMENDI, et al., 	)
)
Defendants. 	)
__________________________________________)
Attorneys:
Alphonso G. Andrews, Jr., Esq.,
St. Croix, U.S.V.I.
Everard E. Potter, Esq.,
St. Thomas, U.S.V.I.
For the United States
Robert J. Kuczynski, Esq.,
St. Croix, U.S.V.I.
For Defendant Jean Carlos Vega-Arizmendi
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendant Jean Carlos Vega-Arizmendi’s
(“Defendant”) Motion in Limine to Exclude Testimony of Peter Kalme (“Motion”) (Dkt. No. 1179)
and the Government’s Opposition to Defendant’s Motion (“Opposition”) (Dkt. No. 1193). For the
reasons discussed below, the Court will deny Defendant’s Motion.
I. 	INTRODUCTION
In his Motion, Defendant argues that testimony by Task Force Officer (“TFO”) Peter
Kalme regarding alleged statements made by Defendant during an interview should be excluded
at trial because (1) he has no personal knowledge of Defendant’s statements, and (2) the statements
cannot be reliably attributed to Defendant. (Dkt. No. 1179 at 2, 3).
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II. 	DISCUSSION
A. 	TFO Kalme’s Personal Knowledge
With respect to Defendant’s first argument, Defendant states that—although TFO Kalme
participated in the interview of Defendant as an interpreter and his testimony relates to statements
allegedly made by Defendant during that interview—evidence from the first trial indicates that
TFO Kalme has no personal recollection of the interview with Defendant. Id. at 3. Defendant
asserts that TFO Kalme’s “testimony is based solely on a hearsay document”—specifically, a form
drafted by Drug Enforcement Administration (“DEA”) Special Agent (“SA”) Brian Gaumond
based on his notes from the interview with Defendant. Id. at 2, 3. Based on these assertions,
Defendant argues that there is insufficient evidence to support a finding that TFO Kalme has
personal knowledge of Defendant’s alleged statements, and as such his testimony does not meet
the requirements for admissibility established by Federal Rule of Evidence 602. Id. at 2.
In its Opposition, the Government argues that, as a participant in the interview of
Defendant, TFO Kalme has personal knowledge of Defendant’s alleged statements during the
interview. (Dkt. No. 1193 at 2). The Government frames Defendant’s claim that TFO Kalme has
no personal recollection of the interview as a “bald[] assertion” made “[w]ithout citation to any
record.” Id. The Government further argues that, in any event, it would be more appropriate to
address the issue of TFO Kalme’s personal recollection during trial, at which point counsel for
Defendant will have the opportunity to voir dire TFO Kalme with respect to the issue of his
personal knowledge. Id.
Although Defendant argues that evidence from the first trial establishes that TFO Kalme
has no recollection of the interview with Defendant, he did not attach any exhibits to his Motion
in support of this contention. Defendant did, however, attach excerpts from the transcript of an
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October 4, 2016 evidentiary hearing held in this matter during which TFO Kalme testified. (Dkt.
No. 1179-1). The Court notes that nothing about the excerpts of the testimony provided by
Defendant suggests that TFO Kalme has no personal recollection of the interview with Defendant.
At the evidentiary hearing, TFO Kalme was able to describe aspects of the interview and its
surrounding circumstances in detail—including the size of the interview room, the lighting
conditions and furniture in the room, the other participants in the interview, and specific actions
he took during the interview such as providing Defendant with Miranda warnings in Spanish. Id.
at 5:4-6:12). Thus, Defendant has presented no basis upon which to support a finding that TFO
Kalme’s testimony should be excluded due to lack of personal knowledge. Defendant’s request
that the Court exclude TFO Kalme’s testimony on this basis will, therefore, be denied.1
B. 	Reliability of TFO Kalme’s Testimony
In his second argument, Defendant states that TFO Kalme’s testimony should be excluded
upon consideration of the factors set forth in United States v. Nazemian, 948 F.2d 552 (9th Cir.
1991), and United States v. Martinez-Gaytan, 213 F.3d 890, 892 (5th Cir. 2000), because the
statements Defendant made through an interpreter cannot reliably be attributed to Defendant. (Dkt.
No. 1179 at 2, 3).2 Specifically, Defendant argues that TFO Kalme’s testimony is unreliable
because SA Gaumond provided the interpreter; the interpreter was working on behalf of the DEA;
the interpreter had “no special qualification or skills in translation or interpretation;” and the report
1 The Court’s ruling in this regard does not prevent Defendant from seeking to voir dire TFO
Kalme at trial regarding his personal knowledge of the interview, or from making objections at
trial that Defendant deems appropriate based on TFO Kalme’s testimony.
2 The four factors identified in Nazemian are: (1) which party supplied the interpreter; (2) whether
the interpreter had any motive to mislead or distort; (3) the interpreter’s qualifications and
language skills; and (4) whether actions taken subsequent to the conversation were consistent with
the statements translated. Id.
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written by SA Gaumond after the interview “contains significant changes from his hand-written
notes, establishing that [Defendant’s] interrogation has been distorted.” Id. at 3.
In its Opposition, the Government points out that TFO Kalme himself served as
Defendant’s interpreter during the interview, and that TFO Kalme will testify as the Government’s
witness. (Dkt. No. 1193 at 6). The Government argues that the four-factor test laid out in Nazemian
is not applicable here because—unlike Nazemian and other cases where an agent was testifying
about what an interpreter told the agent that the defendant said—TFO Kalme’s testimony does not
present the Confrontation Clause and hearsay issues that the Nazemian test was designed to
address. Id.3
3 The Government also contends that the Court should not entertain Defendant’s arguments
concerning the reliability of TFO Kalme’s testimony at all because Defendant objected to the
admission of TFO Kalme’s testimony on the same basis during the first trial, and the Court
overruled the objection. (Dkt. No. 1193 at 6). The Government argues that the “law of the case”
doctrine should operate to preclude Defendant from revisiting this issue as it was decided by the
Court during the first trial. Id.
The Court notes, however, that the majority of circuits that have addressed the issue have
determined that the “law of the case” doctrine does not apply with respect to evidentiary rulings
from a previous trial. See, e.g., United States v. Akers, 702 F.2d 1145, 1148 (D.C. Cir. 1983)
(holding that “[n]o doctrine of the law of the case operates” with respect to evidentiary rulings in
a new trial because “‘the previous trial [is] a nullity,’ [and] the court in the new trial tries ‘the case
as if it were being tried for the first time . . . .’”) (quoting Hobbs v. Akers, 191 A.2d 238, 239, cert.
denied, 375 U.S. 914, (1963)); United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990)
(“Rigorously applying the law-of-the-case doctrine [with respect to evidentiary rulings] would
undercut the broad discretion that traditionally has been accorded a trial court in these matters.”);
Menzer v. United States, 200 F.3d 1000, 1004 (7th Cir. 2000) (“The law of the case doctrine does
not bar a trial court from revisiting its own evidentiary rulings.”). As the Court stated at the status
conference held on February 13, 2018, the Court is not applying the law of the case doctrine to its
evidentiary rulings as a general proposition, and it is therefore incumbent on the parties to raise
whatever objections they deem appropriate and want preserved in the context of the second trial
of this matter. Accordingly, notwithstanding that Defendant challenged the admission of TFO
Kalme’s testimony in the first trial, the Court is considering and ruling on Defendant’s challenge
in the context of the second trial.
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In Nazemian, the Ninth Circuit considered a claim by Nazemian that trial testimony by a
DEA agent about statements Nazemian made during an interview constituted “inadmissible
hearsay and violated the confrontation clause because [the DEA agent] was not able to understand
her statements directly, but only heard them as translated by an interpreter . . . .” Nazemian, 948
F.2d at 525. The Ninth Circuit identified as a threshold matter the issue of “whether the interpreter
or Nazemian should be viewed as the declarant. If the statements properly are viewed as
Nazemian’s own, then there would be no confrontation clause issue since Nazemian cannot claim
that she was denied the opportunity to confront herself.” Id. at 525-26 (footnote omitted). The
Court further noted that “[t]his threshold question likewise controls the hearsay analysis. If the
statements 	are 	viewed 	as 	Nazemian’s 	own, 	they 	would 	constitute 	admissions 	properly
characterized as non-hearsay” under Federal Rule of Evidence 801(d). Id. at 526. The Nazemian
Court then fashioned a four-part test to determine whether an interpreter can properly be viewed
as an agent or “language conduit” of a defendant such that the interpreter’s statements may be
attributed to the defendant—thereby eliminating hearsay and Confrontation Clause concerns in the
event that a third party testifies about the interpreter’s statements. Id. at 527.
Unlike the circumstances addressed in Nazemian, the matter currently before the Court
involves the testimony of the interpreter (TFO Kalme) as to what Defendant said, not the testimony
of another law enforcement officer as to the interpreter’s communication to the officer of
Defendant’s statements. The Second Circuit has specifically distinguished between the type of
scenario presented in Nazemian and the one presented here:
If [the law enforcement agent] had spoken with [the defendant] directly and could
himself have testified to [the defendant’s] answers, his testimony as to [the
defendant’s] statements would have been non-hearsay admissions under Fed. R.
Evid. 801(d)(2)(A) (“A statement is not hearsay if. . . [t]he statement is offered
against a party and is (A) his own statement . . .”). The specter of hearsay arises
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because [the law enforcement agent] could testify only to what [the interpreter] said
[the defendant] had said.
United States v. Da Silva, 725 F.2d 828, 830 (2d Cir. 1983).
Because TFO Kalme (the interpreter) will be on the witness stand and can relate to the jury
what Defendant told him directly, the hearsay issue at which Nazemian and its four-part test are
directed is not present. Likewise, because TFO Kalme will testify and be subject to cross-
examination, there is no Sixth Amendment Confrontation issue present here. Defendant’s reliance
on Nazemian and its four-factor test is therefore misplaced.
The Court concludes that Defendant’s arguments with respect to the reliability of TFO
Kalme’s testimony are more properly directed at the weight that the testimony should be given,
rather than the admissibility of the testimony. This conclusion finds support in persuasive
authority. In United States v. Mejia, 600 F.3d 12 (1st Cir. 2010), a detective at the scene of an
arrest advised Mejia of his Miranda rights in Spanish. Id. at 15. The detective and another officer
began to ask Mejia questions, which the detective translated. Id. at 16. The non-Spanish speaking
officer wrote a report two days later, and Mejia’s incriminating statements were introduced at trial.
Id. On appeal, Mejia argued that the district court improperly allowed the detective to testify as to
the content of his incriminating statements given that the detective lacked formal training in
English-Spanish translation. Id. at 19.
The First Circuit found no abuse of discretion where the district court permitted the defense
to probe the detective’s translation ability, and the detective testified that he was a native Spanish
speaker, regularly spoke English and Spanish at home and work, and had served as a translator in
several law enforcement contexts. Id. The court also concluded that questions regarding the
accuracy of a translation are “more properly directed to the weight of the evidence, not its
admissibility.” Id. at 19-20 (citing United States v. Gonzalez-Ramirez, 561 F.3d 22, 29 (1st Cir.
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2009)); see also United States v. Fujii, 301 F.3d 535, 540-41 (7th Cir. 2002) (observing that it is
the “function of the finder-of-fact to weigh the evidence presented by the parties as to the accuracy
of the proffered translation and to determine the reliability of the translation on the basis of that
evidence”) (quoting United States v. Zambrana, 841 F.3d 1320, 1337 (7th Cir. 1988)).
The Court recognizes that “[d]ue process might require a witness to have a threshold
capacity to understand Spanish before the witness is permitted to testify about a conversation in
that language.” United States v. Silva-Arzeta, 602 F.3d 1208, 1216 (10th Cir. 2010). Here, the
Government represents that TFO Kalme’s “native tongue” is Spanish and that “he had been
conversing in English for 22 years at the time of the interview” with Defendant. (Dkt. No. 1193 at
1). The Government’s representation in this regard is consistent with excerpts of the testimony
appended to Defendant’s Motion. (Dkt No. 1179-1 at 7:25-8:8). The Government also expects
Kalme to testify that “he routinely interprets from Spanish to English and English to Spanish” in
his role as a law enforcement officer. (Dkt. No. 1193 at 6). While Defendant maintains that TFO
Kalme has no special qualification or skills as an interpreter and suggests that his position with
law enforcement might bias his interpretations, the Court concludes that the current record
supports a finding that TFO Kalme has the threshold capacity to understand Spanish and English
necessary to permit his testimony regarding the interview with Defendant. See, e.g., Mejia, 600
F.3d at 19 (officer’s testimony regarding statements made by a defendant in Spanish was properly
admitted—despite the officer’s lack of official training in translation—where he was a native
Spanish speaker, spoke both English and Spanish at home, and had served as a translator in several
law enforcement contexts). Defendant will have the opportunity to challenge TFO Kalme’s
translation abilities and the accuracy of his interpretation, and to demonstrate any alleged bias,
through cross-examination at trial. See Silva-Arzeta, 602 F.3d at 1216 (noting that a defendant’s
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concerns that the officer “may have reported the conversation incorrectly because of his lack of
understanding of Spanish or his bias as a police officer . . . are the bread and butter of litigation”
and that “[a]lthough there may be inaccuracies in [the officer’s] testimony, cross-examination and
the presentation of contrary evidence . . . are what we rely on to assess the truth”).
In sum, the Court finds that Defendant’s reliance on Nazemian is misplaced, and that the
evidence in the record is sufficient to support a finding that TFO Kalme possessed the threshold
language 	capacities 	necessary to 	permit 	his 	testimony regarding 	Defendant’s 	statements.
Defendant will have the opportunity to pursue his challenges through the avenue of cross-
examination at trial. Accordingly, Defendant’s request that the court exclude TFO Kalme’s
testimony on the basis that it is unreliable will be denied.
III. 	CONCLUSION
For the reasons discussed above, the Court will deny Defendant’s Motion. Neither basis
asserted by Defendant in his Motion warrants the exclusion of TFO Kalme’s testimony during the
second trial of this matter.
ORDER
UPON CONSIDERATION of Defendant Jean Carlos Vega-Arizmendi’s Motion in
Limine to Exclude Testimony of Peter Kalme (Dkt. No. 1179), and for the reasons discussed
herein, it is hereby
ORDERED that Defendant’s Motion is DENIED.
SO ORDERED.
Date: March 6, 2018 	_______/s/_______
WILMA A. LEWIS
Chief Judge
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