United States v. Alfonso Gonzalez-Florez

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15430
Non-Argument Calendar
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D.C. Docket No. 4:13-cr-00198-VEH-PWG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONSO GONZALEZ-FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(July 18, 2014)
Before TJOFLAT, WILSON and ANDERSON , Circuit Judges.
PER CURIAM:
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Alfonso Gonzalez-Flores was charged in one count with conspiracy to
distribute and possess with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. § 846, and in another count with
possessing, with intent to distribute, 500 grams or more of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) . He entered into a plea agreement and pled
guilty to the conspiracy count, and the District Court sentenced him to a prison
term of 108 months, at the bottom of the Guidelines range of 108 to 135 months. 1
He now appeals his conviction, challenging the District Court’s failure to record
and have transcribed during his guilty plea hearing (1) the English-to-Spanish and
Spanish-to-English communications between him and the court interpreter, or (2)
the interpreter’s identification, qualifications, or oath. He argues that the Court
Reporter Act’s “verbatim” requirement in 28 U.S.C. § 753(b), Federal Rule of
Evidence 604, and the Court Interpreters Act in 28 U.S.C. § 1827 necessitate that
these portions of the hearing be recorded or transcribed, and that the absence of
such has prevented his new counsel on appeal from reviewing the record to
determine the voluntariness of his plea.
We review issues not raised before the district court for plain error. United
States v. Madden, 733 F.3d 1314, 1319 (11th Cir. 2013). Establishing plain error
requires that a defendant show (1) an error (2) that is plain and (3) that has affected
1
See Presentence Report at ¶ 46.
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his substantial rights. Id. at 1320. Even if a defendant meets this burden, we need
not remedy the error unless it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (alterations omitted). An error is plain if it
is obvious and clear under current law. United States v. Gandy, 710 F.3d 1234,
1240 (11th Cir.), cert. denied, 134 S.Ct. 304 (2013). “It is the law of this circuit
that, at least where the explicit language of a statute or rule does not specifically
resolve an issue, there can be no plain error where there is no precedent from the
Supreme Court or this Court directly resolving it.” United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir. 2003).
I.
The Court Reporter Act provides, in pertinent part, that:
Each session of the court and every other proceeding designated by
rule or order of the court or by one of the judges shall be recorded
verbatim . . . , subject to regulations promulgated by the Judicial
Conference and subject to the discretion and approval of the
judge. . . . Proceedings to be recorded under this section include [] all
proceedings in criminal cases had in open court . . . .
28 U.S.C. § 753(b). Section 753(b)’s requirement that district courts record
“verbatim” all criminal proceedings held in open court is “mandatory.” United
States v. Cashwell, 950 F.2d 699, 703 (11th Cir. 1992). Moreover, in trial settings,
a defendant has a “right to a record on appeal” as a matter of due process, which
includes the right to a “complete transcript of the proceedings at trial.” Id.Nevertheless, a “merely technically incomplete record, involving no substantial or
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significant omissions,” is insufficient to warrant reversal. Id. Where a defendant
is represented by counsel different on appeal than at trial, a new trial is required
only if there is a “substantial and significant omission” from the trial transcript.
United States v. Charles, 313 F.3d 1278, 1283 (11th Cir. 2002).
Section § 753(b) explicitly qualifies its “verbatim” requirement by stating
that it is subject to regulations promulgated by the Judicial Conference. 28 U.S.C.
§ 753(b). The Judicial Conference regulations indicate generally that “the
transcript must contain all words and other verbal expressions uttered during the
course of the proceeding.” 6 Guide to Judiciary Policy § 520.40.10. The
regulations expressly except from this requirement, however, testimony made
through an interpreter. See id. § 520.40.10(g). In such cases, the regulations
provide that “it will be assumed that answers are made in a foreign language and
interpreted unless a parenthetical ‘(in English)’ is inserted.” Id. The model
transcript, which covers the testimony of a Spanish-speaking defendant, includes
only English translations of the defendant’s testimony via the court interpreter. See
id. at App’x 5A.
Neither the Supreme Court nor any of our published decisions have
interpreted either § 753(b) of the Court Reporter Act or the right to a complete
transcript in the context of a recording or transcription of guilty plea hearings. As
to the cases cited by Gonzalez-Flores in his brief, in Selva, the former Fifth Circuit
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applied these rules to the District Court’s omission altogether of closing arguments
from the transcript of a defendant’s trial and concluded that such failure to
transcribe that portion of the trial was reversible error where appellate counsel was
different from trial counsel. United States v. Selva, 559 F.2d 1303, 1304-06 (5th
Cir. 1977). In addition, in Charles, we considered whether the District Court’s
admitting a defendant’s out-of-court statements to an interpreter during an
interview with a customs official violated the Sixth Amendment’s Confrontation
Clause, and held that it did not. United States v. Charles, 722 F.3d 1319, 1322-32
(11th Cir. 2013).
Here, the District Court did not plainly err in not recording or transcribing
during Gonzalez-Flores’s plea hearing the Spanish-to-English and
English-to-Spanish exchanges between him and the court interpreter because there
is no binding authority requiring such, the plain language of § 753(b) of the Court
Reporter Act does not address it, and the Judicial Conference regulations provide
to the contrary.
II.
Section 1827 of the Court Interpreters Act provides, in pertinent part, that:
The Director of the Administrative Office of the United States Courts
shall establish a program to facilitate the use of certified and
otherwise qualified interpreters in judicial proceedings instituted by
the United States . . . . [and] shall prescribe, determine, and certify the
qualifications of persons who may serve as certified interpreters . . . .
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28 U.S.C. § 1827(a), (b)(1). The section does not explicitly mention the need to
identify or establish in a transcript or recording the qualifications of a designated
court interpreter. See id. It does, however, provide that, upon a party’s motion,
“the presiding judicial officer shall determine whether to require the electronic
sound recording of a judicial proceeding in which an interpreter is used under this
section.” Id. § 1827(d)(2). Federal Rule of Evidence 604 explicitly states that
“[a]n interpreter must be qualified and must give an oath or affirmation to make a
true translation.” Fed. R. Evid. 604. Rule 604 does not reference recording or
transcription of an interpreter’s qualifications or oath, however. See id. Neither
the Supreme Court nor any of our published decisions have interpreted either
§ 1827 or Rule 604 in the context of recording or transcription of guilty plea
hearings.
The District Court did not plainly err in not recording or transcribing during
Gonzalez-Flores’s plea hearing the court interpreter’s identification, qualifications,
or oath because there is no binding authority requiring such, and the plain language
of § 1827 of the Court Interpreters Act and Rule 604 likewise does not compel the
inclusion of that information in the transcript.
AFFIRMED.
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