U.S. v. Paz ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 91-4987
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANA YUBY PAYAN PAZ,
Defendant-Appellant.
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Appeal from the United States District Court for the
Eastern District of Texas
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(December 29, 1992)
Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Ana Yuby Payan Paz (Paz) was convicted, on
her plea of guilty, of conspiring to possess with intent to
distribute cocaine contrary to 21 U.S.C. §§ 841(a)(1), 846. Paz
now brings this appeal alleging that her plea was involuntary
because the district court did not provide a certified interpreter
during her plea hearing and that the district court did not inquire
into the interpreter's qualifications or Paz's ability to
understand English. As Paz has shown no reversible error, we
affirm.
Facts and Proceedings Below
Paz, along with several other individuals, was arrested on
November 2, 1990, in Port Arthur, Texas, based on a criminal
complaint alleging a conspiracy to distribute 500 grams or more of
a mixture of a substance containing a detectable amount of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), 846. On May 15, 1991, Paz
was charged in two counts of a seven-count second superseding
indictment. She was charged in count one with conspiracy to
distribute five kilograms or more of a mixture of a substance
containing a detectable amount of cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 846; and in count five with use of a communication
facility to facilitate a drug crime in violation of 18 U.S.C. §
843(b).
On August 20, 1991, Paz's plea of guilty to count one of the
second superseding indictment was accepted by the district court,
the plea being pursuant to a plea agreement under which, inter
alia, the government would dismiss count five. She was
subsequently sentenced to 151 months of imprisonment to be followed
by 5 years of supervised release.
Paz had retained counsel since her arrest, at least since
November 13, 1990, and during the plea hearing a court interpreter,
Nellie Isuani (Isuani), was provided for Paz and a co-defendant,
Daisy Candelo Estancia Fields (Fields), in order to translate
Spanish into English. Although the record does not affirmatively
so reflect, Paz now contends, and the government does not dispute,
that Isuani was not a certified court interpreter as defined by the
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Court Interpreters Act, 28 U.S.C. § 1827 et seq. No objection was
made during any of the proceedings below concerning the court
interpreter.
Discussion
Paz now appeals, contending that the district court erred in
failing to provide a certified court interpreter and in failing to
inquire into the interpreter's qualifications or whether Paz
understood English. Paz maintains that as a result of these errors
she lacked the comprehension necessary to make her guilty plea
freely and voluntarily. Fed. R. Crim. Proc. 11(d).
Paz argues that the district court erred by not providing her
with a certified court interpreter during her plea hearing as
assertedly required under section 1827. Congress enacted that
statute to ensure that a defendant has comprehension of the
proceedings and can effectively communicate with counsel. United
States v. Tapia, 631 F.2d 1207, 1210 (5th Cir. 1980). The
certification process serves as a safeguard to guarantee that the
court interpreter is competent. However, the court may select an
otherwise qualified interpreter if no certified interpreter is
reasonably available.1
1
The pertinent provisions of section 1827 read:
"(d)(1) The presiding judicial officer, with the
assistance of the Director of the Administrative Office
of the United States Courts, shall utilize the services
of the most available certified interpreter, or when no
certified interpreter is reasonably available, as
determined by the presiding judicial officer, the
services of an otherwise qualified interpreter, in
3
Paz claims that she needed a Spanish interpreter and, since
her proceedings were conducted in a Texas federal judicial
district, a certified Spanish interpreter must have been reasonably
available. Concerning this claim, we note that a district court is
given wide discretion in matters regarding the selection of a court
interpreter. Tapia, 631 F.2d at 1209. Such decisions will not be
overturned unless the district court abused its discretion. United
States v. Martinez, 616 F.2d 185, 188 (5th Cir. 1980); Tapia, 631
F.2d at 1209. In the case sub judice, Paz did not give the
district court the opportunity to demonstrate that (or determine
whether) a certified Spanish interpreter was not reasonably
available because Paz failed to object to the interpreter provided.
Therefore, we cannot say that the record reflects that the district
court abused its discretion by choosing an otherwise qualified,
although uncertified, interpreter.
Paz also claims that the district court erred by not
determining whether the uncertified interpreter was competent or
that Paz was sufficiently versed in the English language. This
error supposedly resulted in Paz's lack of comprehension. Since
judicial proceedings instituted by the United States .
. . if the presiding judicial officer determines . . .
that such party (including a defendant in a criminal
case), . . .
(A) speaks only or primarily a language other
than the English language . . .
. . .
so as to inhibit such party's comprehension of the
proceedings or communication with counsel or the
presiding judicial officer, . . . ." 28 U.S.C. § 1827.
4
Paz failed to object in the court below, her alleged error is
reviewed under the plain error standard of Fed. R. Crim. P. 52(b).
United States v. Lopez, 923 F.2d 47, 49 (5th Cir. 1991). The Lopez
court held, "'Plain error' is error which, when examined in the
context of the entire case, is so obvious and substantial that
failure to notice and correct it would affect the fairness,
integrity or public reputation of judicial proceedings." Id. at
50. A review of the record of the entire case does not indicate
such "obvious and substantial" error.
Neither Paz nor her attorney ever indicated below that the
interpreter was inadequate.2 Also, nothing in the record reflects,
and Paz never asserted below, that she could not understand the
proceedings; and throughout the proceedings the court's inquiries
to Paz were fully answered by her without any indication that she
was experiencing any difficulty comprehending the court. When the
trial court asked if Paz could "understand the proceedings today,"
her attorney responded that she could. Paz stated that she was
satisfied with her attorney and acknowledged that she had read the
plea agreement with her counsel, that she understood it, and that
she voluntarily agreed to it. Her attorney also acknowledged that
Paz's decision to enter into the plea agreement was "an informed
and voluntary one." Finally, when asked by the trial court at the
2
Paz's failure to object at trial is a factor that weighs
heavily against her claim of inadequate comprehension. United
States v. Perez, 918 F.2d 488, 490 (5th Cir. 1990). Otherwise,
"To allow a defendant to remain silent throughout the trial and
then, upon being found guilty, to assert a claim of inadequate
translation would be an open invitation to abuse." Valladares v.
United States, 871 F.2d 1564, 1566 (11th Cir. 1989).
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close of the proceedings if there was anything further, Paz's
attorney replied that there was not. The record simply does not
indicate that the interpreter was inadequate or that Paz lacked
comprehension.3
Furthermore, the district court did not err in failing to
ascertain whether Paz could comprehend the English language. In
the Perez case, the defendant indicated to the district court that
he had some difficulty in understanding the English language.
However, the defendant "twice assured the magistrate that he
understood the proceedings and did not require an interpreter."
Perez, 918 F.2d at 490. Therefore, because the district court "was
not put on notice to the contrary either directly or indirectly,"
it did not need to make a finding that the defendant's
comprehension was inhibited by language difficulties. Id. at 491.
In the case sub judice, the district court asked Paz's counsel if
Paz understood the proceedings and asked Paz if she understood her
plea agreement. Both answered in the affirmative. In these
circumstances, the district court was not required to sua sponte
also make a separate, express finding that Paz understood the
English language.
3
In fact, there is ample evidence that Paz did not need an
interpreter. The Presentence Report (PSR) does not indicate that
she could not understand English. The PSR states that she came
to the United States "to learn a second language in order to
increase her market ability as a commercial secretary," and that
she had been living in the United States for several years. The
PSR also indicates that she was in the process of earning her GED
while incarcerated. Prior to her arrest, Paz worked for three
years as a receptionist at Nelson's Body Shop in Houston. These
facts tend to indicate that at a minimum Paz had a working
knowledge of the English language.
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Conclusion
Paz has failed to show that her plea was involuntary due to
her asserted lack of comprehension of the English language.
Accordingly her conviction is
AFFIRMED.
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