The opinion of the court was delivered by: KATZ
AND NOW, this 9th day of March, 1998, upon consideration of defendant's Motion for a New Trial Due to Improper Translation/Interpretation, and the government's response thereto, and after a hearing, it is hereby ORDERED that the said motion is DENIED.
On November 14, 1997, a jury convicted Hernandez of conspiracy to distribute cocaine, conspiracy to possess cocaine with intent to distribute, and possession of cocaine with intent to distribute. The conviction was based upon defendant's possession of more than a kilogram of cocaine in her purse during a prearranged drug delivery to a cooperating witness, as well as testimony that the defendant had previously made cocaine deliveries under similar circumstances with her co-defendant, Mateo Jose Vasquez. Defendant Hernandez required an interpreter throughout the proceedings, as she had an insufficient understanding of English. She also called two Spanish-speaking witnesses at her trial: her husband, Francisco Hernandez, and her co-defendant Vasquez. Interpreter Sagrario Aleman interpreted the testimony of the defendant's husband, and interpreter Michele Mattei interpreted the testimony of Vasquez. Hernandez testified that his wife was not a drug dealer, and that she was with Vasquez on the day of her arrest because her car had broken down and she needed to do some errands. Vasquez testified that he had put the kilogram of cocaine in her purse, and that she did not know the drugs were in the purse until Vasquez told her so immediately before the police stop. Vasquez also stated that although Margarita Hernandez had accompanied him on previous trips to deliver drugs to the cooperating witness, she did not know that he was delivering drugs at those times and did not participate in those deliveries.
At the conclusion of Vasquez's testimony, interpreter Aleman advised defense counsel that interpreter Mattei had incorrectly interpreted the word "ever" as "never" when Vasquez was asked whether he had ever gone to New York with Margarita Hernandez. See Tr. at 132-33. Defense counsel advised the Assistant United States Attorney of that concern. An off-record discussion ensued. Defense counsel, the AUSA, and interpreter Mattei then talked to Vasquez to clarify the question and Vasquez's response. This discussion confirmed the accuracy of the witness's prior response--that he had gone to New York with Hernandez to purchase clothes--and no correction was made on the record. At no time did defense counsel object to the use of interpreter Mattei or to any particular translation or interpretive technique utilized by Mattei.
Hernandez was scheduled for sentencing on February 26, 1998. On February 23, 1998, interpreter Aleman informed defense counsel of a number of perceived translation errors made by Mattei. Defense counsel then filed a motion for a new trial on the basis of improper translation. Aleman has since offered the following examples of problematic translations by interpreter Mattei, based on notes she took during the trial:
Aleman raised some specific objections to Mattei's translation of Vasquez's testimony.
1. In the question "Have you ever been to New York," Ms. Mattei interpreted "ever" as "never." This is the situation in which a colloquy during trial confirmed the accuracy of the witness's of-record response--that he gone to New York with Margarita Hernandez to purchase clothes.
2. When defense counsel asked Vasquez, "Were you given an opportunity to help yourself," Mattei's interpretation of the question to the witness was whether the witness had been given an opportunity to help someone else. In fact, the transcript shows that any confusion was clarified through a series of questions and responses:
Q: Did you have an opportunity to do something that would help you in this case?
A: I don't understand help myself, or help someone else, or me myself, my person?
Q: Did you have an opportunity to do something that would get you less time in jail if you did it?
A: I had an opportunity, but since I'm not going to tell lies, I didn't do it.
Q: What did you have to do to help yourself?
INTERPRETER: May the interpreter ask for clarification?
Q: Did you tell whoever told you to that you would not speak ...