In United States v. Lucas-Hernandez, --- F.4th ---, No. 22-50110 (9th Cir. 2024), the Court affirmed Romeo Lucas-Hernandez’s misdemeanor conviction for attempted illegal entry under 8 U.S.C. § 1325(a)(1), following a bench trial before a magistrate judge, in a case in which Lucas-Hernandez asserted that the magistrate judge erred by admitting a border patrol agent’s Spanish-to-English translation of Lucas-Hernandez’s field statements.
On appeal, Lucas-Hernandez asserted that the magistrate judge erred by admitting a border patrol agent’s Spanish-to-English translation of Mr. LucasHernandez’s field statements under Federal Rule of Evidence 801(d)(2)(A) without determining whether the agent was a “language conduit” under United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991), cert. denied, 506 U.S. 835 (1992). We hold that Nazemian applies to the statements of a party opponent that are translated by a testifying witness, but that any error in admitting Agent Mauler’s Spanish-to-English translation was harmless.
The government argues that the Nazemian analysis is inapplicable to cases where, as here, “there was no interpreter.” We disagree. If anything, it is even more critical for courts to assess the language competence of someone who is not a formal interpreter, and whose language proficiency has neither been tested nor certified, when the prosecution seeks to rely on that person’s translations of statements purportedly made by or to a criminal defendant. Particularly where a person with minimal language skills attempts to communicate in that language with a potential criminal defendant, the risk of mispronunciation, miscommunication, or mistranslation is high. See, e.g., United States v. Ramos, 623 F.3d 672, 678–79, 680–81 (9th Cir. 2010) (holding that an immigration officer with limited Spanish training did not provide a competent translation for purposes of a waiver of appeal, even though she asked routine questions). Applying the Nazemian analysis in these circumstances helps to ensure the accuracy of statements or admissions made in another language before they can be admitted against a criminal defendant.
We hold that the Nazemian analysis applies to the present circumstances because Agent Mauler testified in English as to Lucas-Hernandez’s statements, which were originally made in Spanish. As a result, the magistrate judge was required to determine whether Agent Mauler’s translations “fairly should be considered the statements of [Lucas-Hernandez],” applying the factors identified in Nazemian, 948 F.2d at 527. However, because any error in admitting Agent Mauler’s testimony was harmless, we affirm the district court’s ruling upholding LucasHernandez’s conviction under 8 U.S.C. § 1325(a)(1).
