United States v. Erdinc Coskun

Case: 14-30928 Document: 00513163538 Page: 1 Date Filed: 08/20/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30928 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, August 20, 2015
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
ERDINC COSKUN,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:13-CR-267-1
Before DAVIS, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
Appellant Erdinc Coskun (“Coskun”)—a national of the Republic of
Turkey—appeals his conviction for failing to depart the United States
pursuant to a final order of removal. Coskun argues that the district court
abused its discretion by denying Coskun an interpreter at trial and he is
entitled to a new trial. Because the record supports the district court’s
judgment, we affirm Coskun’s conviction and deny his request for a new trial.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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I. BACKGROUND
Coskun was indicted on two counts of failure to depart the United States
pursuant to a final order of removal. The indictment alleged that Coskun
physically resisted removal on April 2, 2013 and May 1, 2013 after a final order
of removal was issued against him.
When the trial began on April 22, 2014, Coskun requested an
interpreter. Coskun explained that he wanted the interpreter to assist him
during the trial. Although Coskun admits that he is fairly proficient in writing
the English language, he told the district court that he has difficulty
understanding oral communication when several parties talk simultaneously.
In response to Coskun’s request, the court attempted to question Coskun
regarding his ability to speak and understand the English language, asking
him when he first came to the United States. Coskun refused to answer,
claiming that it would violate his right against self-incrimination. Coskun
informed the court that he had an interpreter during the immigration
proceedings.
Because Coskun refused to answer questions regarding his need for an
interpreter, the court turned to the Government to provide information based
on Coskun’s immigration file. The Government told the court that Coskun
arrived in the United States on a student visa in 2000. The first seven years
he was in the U.S. Coskun attended college, including three years at a
community college and apparently the balance at Syracuse University. In
2007, Coskun terminated his studies at Syracuse University and his student
visa expired. At that time, he had only two classes left to complete his Master’s
program in telecommunication and network management. Once his student
visa expired, Coskun was required to depart the United States. In November
2009, the government initiated removal proceedings by issuing Coskun a notice
to appear.
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The immigration judge had difficulty getting to the merits of the removal
proceeding. The immigration judge had at least eight hearings which the judge
continued to allow Coskun to find an attorney. This occurred over the course
of a year and a half from his first notice to appear until a resolution of his
removal proceedings. In all of those hearings, he repeatedly interrupted the
immigration judge in English and refused to speak through the interpreter.
He also filed a number of frivolous motions and on occasion refused to
participate in the hearings. During all of these hearings the government
agrees the immigration judge provided an interpreter which Coskun almost
never utilized. On May 2, 2011, the immigration judge denied asylum,
withholding of removal, and deferral of removal under the Convention Against
Torture, and ordered Coskun removed to Turkey. He was taken to the airport
twice and refused to board the airplane.
After repeated interruptions from Coskun during the hearing, the
district court told Coskun, “Part of your problem is you don’t want to listen.
Part of your problem is you just want to talk in hopes that you can delay this
proceeding. . . . That’s what’s going on here, and I understand it, Mr. Coskun.”
The court then took a recess to review Coskun’s immigration file. Based
on that review, the court concluded that an interpreter was unnecessary. The
court stated:
In looking at the records that I have here, I want, Mr. Brown, for
you to take the entire A-file and have it marked as a court exhibit
for purposes of this hearing.
***
It is my ruling that an interpreter is not necessary in this case. In
fact, I want to observe, although Mr. Coskun does speak with an
accent, he’s obviously intelligent. He is explaining about the law
to me, and his arguments, for that matter, have been fairly
sophisticated all the way through, and on that basis it’s my view
he does not need an interpreter to assist him with this trial.
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The case proceeded to trial that day. The government presented
testimony from the two Department of Homeland Security Agents who
attempted to physically remove Coskun from the United States. Coskun
testified in his defense without the aid of an interpreter and argued that he
was not subject to a valid final order of removal. 1 The jury found Coskun guilty
on both counts. Coskun was sentenced within the guidelines range to a total
of six months imprisonment, followed by one year of supervised release.
Coskun has completed his sentence and has been removed to the Republic of
Turkey. 2
II. DISCUSSION
The Court Interpreter’s Act (“the Act”) of 1978, 28 U.S.C. § 1827,
requires, in pertinent part, the appointment of an interpreter when the judge,
either sua sponte or on the motion of a party, determines that the defendant
1 Coskun appealed the Board of Immigration Appeals (“BIA”) order affirming the
immigration judge’s denial of asylum, withholding of removal, and relief under the
Convention Against Torture to the United States Court of Appeals for the Second Circuit. As
a matter of routine, the Second Circuit granted Coskun an automatic stay of removal until it
could address his appeal. On January 11, 2013, the Second Circuit dismissed Coskun’s appeal
for lack of jurisdiction. This dismissal lifted the automatic stay. Coskun then appealed the
BIA’s order to the United States Court of Appeals for the Ninth Circuit, again getting an
automatic stay of his deportation. The Ninth Circuit dismissed Coskun’s appeal for lack of
jurisdiction on January 22, 2013, terminating Coskun’s temporary stay of removal. Coskun
then filed a motion for reconsideration with the Second Circuit and Ninth Circuit. On March,
21, 2013, the Ninth Circuit denied Coskun’s motion. However, at the time of Coskun’s
attempted deportations on April 2, 2013 and May 1, 2013, the Second Circuit had not
addressed Coskun’s motion for reconsideration. Coskun argued to the jury that since his
motion for reconsideration had not been ruled on by the Second Circuit at the time the
deportation officers attempted to remove him, there was a stay of his removal in effect and,
thus, he was not subject to a valid final order of removal. Ultimately, the Second Circuit
denied Coskun’s motion for reconsideration on July 12, 2013.
2 Even though Coskun completed his sentence, his appeal is not moot. There is a
presumption “that most criminal convictions . . . entail adverse collateral legal consequences.”
Sibron v. New York, 392 U.S. 40, 55 (1968). If Coskun were to apply for reentry into the
United States, his convictions resulting from this case would likely be considered and may
lead to adverse effects. See 8 U.S.C. § 1182(a)(2)(A)(i)(II).
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“speaks only or primarily a language other than the English language.” 3
However, even if the defendant’s primary language is other than English, if his
understanding of the English language is such that he is not inhibited from
comprehending the proceedings and the presentation of the testimony of the
witnesses against him, the court is not required to appoint an interpreter. 4
Instead, an interpreter should be appointed when the presiding judicial officer
finds that the “defendant’s ability to comprehend the proceedings or
communicate with counsel is ‘inhibited’ by language or hearing problems.” 5
Stated another way, a defendant who speaks only or primarily a language
other than English such as to inhibit his comprehension of judicial proceedings
or his communications with his counsel is entitled to have the court appoint
for him an interpreter. 6
The district court is given wide discretion in deciding whether to appoint
an interpreter. 7 Refusing to appoint an interpreter, however, cannot be a
matter of expediency. If an interpreter is required under the Act, then the
court must appoint one, regardless of the fact that it may be troublesome or
time consuming. We review the court’s decision for an abuse of discretion. 8
After reviewing the record, we are not persuaded that the district court
abused its discretion by failing to appoint an interpreter to assist Coskun
during his trial. In response to Coskun’s request for an interpreter, the district
court conducted an extended hearing to determine Coskun’s understanding of
3 28 U.S.C. § 1827(d)(1)(A)
4 United States v. Tapia, 631 F.2d 1207, 1210 (5th Cir. 1980).
5 United States v. Perez, 918 F.2d 488, 490 (5th Cir. 1990) (citing 28 U.S.C. § 1827(d)).
6 Tapia, 631 F.2d at 1209-10.
7 United States v. Ball, 988 F.2d 7, *9 (5th Cir. 1993).
8 Id.
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the English language. Coskun refused to answer the court’s questions, even
after the court instructed him to answer the questions. The court then turned
to Coskun’s immigration file to determine Coskun’s understanding of the
English language. As indicated above, the file showed that:
• Coskun had lived in the United States for 14 years.
• For the first seven years, Coskun attended college, including several
years at Syracuse University.
• By his own admission, Coskun was two classes short of obtaining his
Master’s degree in telecommunication and network management from
that university.
• Throughout the immigration proceedings, Coskun filed several legal
documents pro se, all of which were hand-written or typed in the English
language.
• Although Coskun had an interpreter during the immigration
proceedings, he insisted on speaking in English, even after the
immigration judge instructed him to speak through the interpreter.
Other interactions between Coskun and the district court corroborated
the court’s determination that Coskun sufficiently understood English. On
several occasions, Coskun communicated out of turn with the district court in
English making legal arguments challenging the appointment and sufficiency
of his counsel and the validity of his indictment. Relatedly, he objected to the
government’s evidence on several occasions and attempted to cross-examine
government witnesses. These attempted exchanges with the court and
witnesses were on point and reflect no inability of Coskun to understand what
was being said. When the district court admonished Coskun, he seemed to
understand its instructions. In none of Coskun’s out-of-turn exchanges with
the district court did he indicate that he did not understand the testimony of
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the witnesses. Coskun’s attorney never told the court that he had trouble
communicating with his client, and the record reflects no such problems.
Perhaps most revealing, Coskun testified in English in his own defense.
During his testimony, Coskun responded appropriately to his counsel’s
questions, except for one occasion when Coskun misused the word “cordial.”
Coskun made sophisticated legal arguments in his defense. No juror ever
indicated difficulty understanding Coskun. Throughout the proceedings, the
court reporter asked Coskun to repeat only one word, demonstrating his ability
to use the English language.
Based on this record, we cannot say the district court abused its
discretion by concluding that Coskun’s understanding of the English language
was sufficient such that he could comprehend the proceedings and
communicate with his counsel. We therefore affirm his conviction.
AFFIRMED.
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